Exhibit 10.2
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 30, 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