AMENDED AND RESTATED EMPLOYMENT AGREEMENT

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Exhibit 10.1

AMENDED AND RESTATED
EMPLOYMENT AGREEMENT

        THIS EMPLOYMENT AGREEMENT is made on October 27, 2005 but shall be effective as of July 1, 2005, between EARTHLINK INC., a Delaware corporation, and CHARLES G. BETTY (referred to herein as "You") and constitutes an amendment and restatement of that certain Employment Agreement between the Company and You dated January 28, 2003.

RECITALS

        1.     The Company is engaged in the business of providing internet connectivity products and services (broadband, narrowband and wireless) throughout the States of the United States and in other geographical areas; and

        2.     The Company has determined that in view of Your knowledge, expertise and experience in the computer and information services industries and in the internet communications (broadband, narrowband and wireless) telecommunications industry segment, Your services as the Chief Executive Officer of the Company have been and will be of great value to the Company, and accordingly, the Company desires to enter into this Agreement with You on the terms set forth herein in order to secure such services; and

        3.     You desire to serve as the Chief Executive Officer of the Company on the terms set forth herein.

         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, with respect to a party, any entity at any tier that controls, is controlled by, or is under common control with that party.

        (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 internet access services via broadband, narrowband and/or wireless means. The Business of the Company constitutes the core business of the Company, but is a subset of all segments of the business in which the Company is engaged.

        (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 habitual failure after written notice specifying such failure and a reasonable opportunity to cure such failure to perform Your duties hereunder responsibly.

        (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 more than fifty percent (50%) of the combined voting power of the Company's Voting Stock; provided that for purposes of this subparagraph (1), a Change in Control Event will not be deemed to have occurred if the accumulation of more than fifty percent (50%) of the voting power of the Company's Voting Stock results from any acquisition of Voting Stock (a) directly from the Company that is approved by the Incumbent Board, (b) by the Company, (c) by any employee benefit plan (or related trust) sponsored or

maintained by the Company or any Subsidiary, or (d) by any Person pursuant to a Business Combination that complies with clauses (a) and (b) of subparagraph (2) below; or

        (2)   Consummation of a Business Combination, unless, immediately following that Business Combination, (a) all or substantially all of the Persons who were the beneficial owners of Voting Stock of the Company immediately prior to that Business Combination beneficially own, directly or indirectly, at least fifty percent (50%) of the then outstanding shares of common stock and at least fifty percent (50%) of the combined voting power of the then outstanding Voting Stock entitled to vote generally in the election of directors of the entity resulting from that Business Combination (including, without limitation, an entity that as a result of that transaction owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions relative to each other as their ownership, immediately prior to that Business Combination, of the Voting Stock of the Company, and (b) at least sixty percent (60%) of the members of the Board of Directors of the entity resulting from that Business Combination holding at least sixty percent (60%) of the voting power of such Board of Directors were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board of Directors providing for that Business Combination and as a result of or in connection with such Business Combination, no Person has a right to dilute either of such percentages by appointing additional members to the Board of Directors or otherwise without election or other action by the stockholders; or

        (3)   A sale or other disposition of all or substantially all of the assets of the Company, except pursuant to a Business Combination that complies with clauses (a) and (b) of subparagraph (2); or

        (4)   Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company, except pursuant to a Business Combination that complies with clauses (a) and (b) of subparagraph 2.

        (g)   " Company " shall mean Earthlink Inc.

        (h)   " Confidential Information " means any and all non-public information concerning, relating to and/or in the possession of, the Company and/or its Affiliates and/or the Business of the Company treated as confidential or secret by the Company and/or its Affiliates (that is, such business information is subject to efforts by the Company and/or its Affiliates that are reasonable under the circumstances to maintain its secrecy) that does not constitute a Trade Secret, including, without limitation, information concerning the Company's or an Affiliate's financial position and results of operations (including revenues, assets, net income, etc.), annual and long range business plans, product and service plans, marketing plans and methods, employee lists and information, in whatever form and whether or not computer or electronically accessible.

        (i)    " Control ", Controlled by " and " Under Common Control with " means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the Company (a) through the ownership of securities which provide the holder with such power excluding voting rights attendant with such securities or (b) by contract.

        (j)    " Incumbent Board " means a Board of Directors at least a majority of whom consist of individuals who either are (a) members of the Company's Board of Directors as of the effective date of the adoption of the AV/SP (as defined in Section 4(c)(2)) or (b) members who become members of the Company's Board of Directors subsequent to the date of the adoption of the AV/SP whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least sixty percent (60%) of the directors then comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which that person is

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named as a nominee for director, without objection to that nomination), but excluding, for that purpose, any individual whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Securities Exchange Act of 1934, as amended) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of Directors.

        (k)   " Person " means any individual, entity or group within the meaning of Section 13(D)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended.

        (l)    " Subsidiary " means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if at the time of adoption of the Plan and all time thereafter, each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

        (m)  " Total Disability " means Your inability, through physical or mental illness or accident, to perform the majority of Your usual duties and responsibilities hereunder (as such duties are constituted on the date of the commencement of such disability) in the manner and to the extent required under this Agreement for a period of at least ninety (90) consecutive days. Total Disability shall be deemed to have occurred on the first day following the expiration of such ninety (90) day period.

        (n)   " Trade Secrets " means any and all information concerning, relating to and/or in the possession of, the Company and/or its Affiliates and/or the Business of the Company that qualifies as a trade secret as defined by the laws of Georgia on the date of this Agreement and as such laws are amended from time to time thereafter.

        (o)   " Voting Stock " means the then outstanding securities of an entity entitled to vote generally in the election of members of that entity's Board of Directors.

         2.     Employment; Duties .     

        (a)   The Company agrees to employ You as Chief Executive Officer of the Company with the duties and responsibilities generally associated with such positions and such other reasonable additional responsibilities and positions as may be added to Your duties from time to time by the Board of Directors consistent with Your positions.

        (b)   During Your employment hereunder, You shall (i) diligently follow and implement all management policies and decisions communicated to You by the Board of Directors; and (ii) timely prepare and forward to the Board of Directors all reports and accountings as may be requested of You.

        (c)   Your duties and responsibilities hereunder shall be modified and/or excused during reasonable periods of absence due to Your health or disability or vacation, as provided herein.

         3.     Term .     The term hereof shall commence on July 1, 2005, shall continue for a period of three (3) years and shall be automatically extended from year-to-year thereafter unless terminated in accordance with Section 6 hereof (the "Term").

         4.     Compensation .    

        (a)    (1)    You shall be paid an annual base salary of not less than Seven Hundred Twenty-Five Thousand Dollars ($725,000) per year (the "Base Salary") commencing on July 1, 2005. The Base Salary shall accrue and be due and payable in equal, or as nearly equal as practicable, semi-monthly installments and the Company may deduct from each such

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installment all amounts required to be deducted and withheld in accordance with applicable federal and state income, FICA and other withholding tax requirements.

        (2)   The Base Salary shall be reviewed by the Board of Directors at least once during each year of the Term and may be increased from time to time and at any time by the Board of Directors. The Base Salary shall in no event be reduced or decreased below the highest level attained at any time by You, unless You and the Board of Directors agree to implement a temporary salary reduction program for cost abatement purposes.

        (3)   If the Term shall begin on other than the first business day of a calendar month and if the Term hereof shall terminate on other than the last day of a calendar month, Your compensation for such month shall be prorated according to the number of days during such month that occur within the Term.

        (b)   For the fiscal year of the Company ending on December 31, 2005, You shall be entitled to receive an annual target bonus in an amount equal to seventy-five percent (75%), with the opportunity to over achieve up to one hundred twelve percent (112%), of Your Base Salary if the bonus criteria for such annual period are satisfied (the "Target Bonus Payment"). Commencing with the fiscal year of the Company ending on December 31, 2006 and for each fiscal year thereafter, the percentage of Your Base Salary for determining the Target Bonus Payment shall be increased to at least seventy-five percent (75%), with the opportunity to over achieve up to one-hundred fifty percent (150%), of Your Base Salary. Any increase in the percentage of Your Base Salary for determining Your Target Bonus Payment for the fiscal years of the Company ending after December 31, 2006, shall be set by the Board of Directors on a Company fiscal year basis. The Target Bonus Payment percentage and criteria for each year of the Term shall be based upon good faith negotiations between You and the Board of Directors. All Target Bonus Payments shall paid to You on or before the last day of February in the year following the year for which such Target Bonus Payment is computed.

        (c)   While You are performing the services described in herein, the Company shall, upon Your request, reimburse You for all reasonable and necessary expenses incurred by You in connection with the performance of Your duties of employment hereunder.

        (d)    (1)    The Company now maintains, and while You are rendering services to the Company may establish, one or more additional incentive or other compensation plan(s) (however described or denominated) for the corporate, operating or executive officers or other management of the Company, or if the Company now maintains or, while You are rendering services to the Company, continues and/or establishes any benefit program(s) (however described or denominated) for corporate, operating or executive officers or other management employees of the Company, You shall be eligible to fully participate, and shall participate, in each such plan or benefit program.

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        (2)   Pursuant to this Section 4(d), You are now and shall continue to participate in the Change-In-Control Accelerated Vesting and Severance Plan adopted by the Compensation Committee of the Board of Directors of the Company at its April 19, 2001 meeting and any plan(s) or program(s) that supercede, replace and/or supplement such plan, as in effect from time to time (the "AV/SP"), at the highest and most beneficial level of participation provided under the AV/SP. With respect to each individual benefit, or category of similar benefit, provided to You under each of the AV/SP and this Agreement, the two (2) benefits shall not be cumulative, and You shall have the right and obligation to elect to take each such benefit under the terms of the AV/SP or the terms of this Agreement within such time period for Your election as shall be reasonable under the circumstances and agreed by You and the Company. The restrictions on cumulation of benefits in this Section 4(d)(2) and the application of the terms of the AV/SP to benefits provided thereunder, shall not apply to Your right to qualify for and participate in the AV/SP at the highest and most beneficial level of participation.

        (e)   During the Term and any Severance Period, the Company shall provide health, medical, disability and term life insurance to You and Your family in accordance with any group plan which it now maintains or which may hereafter be established by the Company. In addition, the Company shall reimburse You, upon request, for Your term life insurance policy payments under a policy or policies with aggregate death benefits of $3,000,000 held by You (and under any replacement policies). These benefits shall be payable to Your estate or a beneficiary or beneficiaries designated by You from time to time.

        (f)    You shall receive not less than four (4) weeks paid vacation during each twelve (12) month period of Your employment. Such vacation period may be increased from time to time and at any time by the Board of Directors but shall in no event be shortened to less than the longest period attained by You at any time during Your employment.

         5.     Stock Options .     

        (a)   Pursuant to a Non-Qualified Stock Option Agreement dated February 19, 1998 (the "Option Agreement"), You were granted options to purchase 150,000 shares of the common stock of the Company at $44.75 per share (the "Option Shares") under the Earthlink Network, Inc. 1995 Stock Option Plan (the "Plan"). Upon Your exercise of these options in accordance with the Option Agreement, the Company has agreed to pay to You $24.75 with respect to each share of the Option Shares purchased by You. This agreement by the Company was and is intended to provide to You additional compensation for Your services tied to Your purchase of the Option Shares. The $24.75 amount payable to You with respect to Your purchase of each Option Share was and is subject to equitable and proportional adjustment in accordance with the adjustment and exchange mechanisms in the Plan with respect to the exchange, number and pricing of the Option Shares.

        As of January 28, 2003, your exercise of the options for the Option Shares since the grant and corporate actions taken by the Company as anticipated in the Plan, have caused adjustments to be made in the number of Option Shares subject to unexercised options, the $44.75 exercise price and the per exercised Option Share cash of $24.75 payable to You upon exercise. Accordingly, the parties agree that the following facts are accurate as of January 28, 2003: (1) the balance of Your Option Shares subject to unexercised options is 193,800 shares of the common stock of the Company; (2) the exercise price is $13.85 per Option Share; and (3) the cash payable to You upon exercise of the options and purchase of the Option Shares is $7.66 per Option Share.

        (b)   Your options to purchase voting common stock of the Company describe