Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") between
EARTHLINK, INC., a Delaware corporation (the "Company"), and ROLLA HUFF
(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 June 25, 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 EXECUTIVE OFFICER AND PRESIDENT 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
EXECUTIVE OFFICER AND PRESIDENT 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, AS SET FORTH HEREIN, 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