Exhibit 10.27
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") between
EARTHLINK, INC., a Delaware corporation (the "Company"), and JOSEPH M. WETZEL
(referred to herein as "You") is entered into on December 15, 2008.
This
Agreement amends, restates and supersedes the Employment Agreement between the
Company and you dated August 27, 2007 (the "Previous Agreement").
RECITALS
1.
THE COMPANY IS ENGAGED IN THE BUSINESS OF PROVIDING INTEGRATED
COMMUNICATION SERVICES AND RELATED VALUE ADDED SERVICES TO INDIVIDUAL CONSUMERS
AND BUSINESS CUSTOMERS THROUGHOUT THE STATES OF THE UNITED STATES; AND
2.
THE COMPANY PREVIOUSLY DETERMINED THAT, IN VIEW OF YOUR
KNOWLEDGE, EXPERTISE AND EXPERIENCE IN THE INTEGRATED COMMUNICATION SERVICES AND
RELATED VALUE-ADDED SERVICES INDUSTRIES, YOUR SERVICES AS THE CHIEF OPERATING
OFFICER OF THE COMPANY WOULD BE OF GREAT VALUE TO THE COMPANY, AND ACCORDINGLY,
THE COMPANY DESIRED TO ENTER INTO THE PREVIOUS AGREEMENT WITH YOU ON THE TERMS
SET FORTH THEREIN IN ORDER TO SECURE YOUR SERVICES; AND
3.
YOU DESIRED TO SERVE AS THE CHIEF OPERATING OFFICER OF THE
COMPANY ON THE TERMS SET FORTH IN THE PREVIOUS AGREEMENT; AND
4.
THE COMPANY AND YOU NOW DESIRE TO AMEND AND RESTATE THE PREVIOUS
AGREEMENT TO ADDRESS SECTION 409A OF THE CODE (AS DEFINED BELOW) AND THE FINAL
REGULATIONS ISSUED THEREUNDER.
NOW, THEREFORE, in consideration of Your employment by the Company, the above
premises and the mutual agreements hereinafter set forth, You and the Company
agree as follows:
1.
DEFINITIONS.
(A)
"AFFILIATE" MEANS ANY TRADE OR BUSINESS WITH WHOM THE COMPANY WOULD
BE CONSIDERED A SINGLE EMPLOYER UNDER SECTIONS 414(B) OR 414(C) OF THE CODE
(EXCEPT THAT FOR PURPOSES OF DETERMINING YOUR TERMINATION OF EMPLOYMENT, THE
LANGUAGE "AT LEAST FIFTY PERCENT (50%)" SHALL BE USED INSTEAD OF "AT LEAST
EIGHTY PERCENT (80%)" EACH PLACE IT APPEARS IN SECTIONS 414(B) OR 414(C) OF THE
CODE).
(B)
"BENEFICIAL OWNERSHIP" MEANS BENEFICIAL OWNERSHIP AS THAT TERM IS
USED IN RULE 13D-3 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
(C)
"BUSINESS COMBINATION" MEANS A REORGANIZATION, MERGER OR
CONSOLIDATION OF THE COMPANY.
(D)
"BUSINESS OF THE COMPANY" MEANS THE BUSINESS OF PROVIDING INTEGRATED
COMMUNICATION SERVICES AND RELATED VALUE ADDED SERVICES TO INDIVIDUAL CONSUMERS
AND BUSINESS CUSTOMERS.
(E)
"CAUSE" MEANS (I) YOUR COMMISSION OF ANY ACT OF FRAUD OR DISHONESTY
RELATING TO AND ADVERSELY AFFECTING THE BUSINESS AFFAIRS OF THE COMPANY;
(II) YOUR CONVICTION OF ANY FELONY; OR (III) YOUR WILLFUL AND CONTINUED FAILURE
TO PERFORM SUBSTANTIALLY YOUR DUTIES OWED TO THE COMPANY AFTER WRITTEN NOTICE
SPECIFYING THE NATURE OF SUCH NON-PERFORMANCE AND A REASONABLE OPPORTUNITY TO
CURE SUCH NON-PERFORMANCE.
NO ACT OR OMISSION SHALL BE CONSIDERED "WILLFUL"
UNLESS IT IS DONE OR OMITTED IN BAD FAITH OR WITHOUT REASONABLE BELIEF THAT THE
ACTION OR OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY.
(F)
"CHANGE IN CONTROL EVENT" OF THE COMPANY MEANS THE OCCURRENCE OF ANY
OF THE FOLLOWING EVENTS:
(1)
THE ACCUMULATION IN ANY NUMBER OF RELATED OR UNRELATED
TRANSACTIONS BY ANY PERSON OF BENEFICIAL OWNERSHIP OF