SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT is made as of this 10th
day of February, 1998 between EarthLink Network, Inc., a Delaware corporation
(the "Company") and Xxxxxxx X. Xxxxx (the "Employee").
RECITALS
WHEREAS, the Company and Employee have entered into an Employment
Agreement, dated January 15, 1996, as first amended on December __, 1997
(together, the "Agreement");
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the shareholders of the Company to enter into a
strategic relationship in the area of Internet access and related services
with Xxxxxx Corporation, a Kansas corporation ("Xxxxxx") and its affiliates,
pursuant an Investment Agreement, dated as of February 10, 1998 among Xxxxxx,
Xxxxxx Communications Company, L.P., a Delaware limited partnership ("Xxxxxx
Sub"), Newco, Inc., a Delaware corporation ("Newco") and Newco Sub, Inc., a
Delaware corporation (the "Investment Agreement");
WHEREAS, as a condition to the consummation of the transactions
contemplated in the Investment Agreement, the Company has agreed to amend
this Agreement to preclude the transactions contemplated by the Investment
Agreement from inadvertently causing a "Change in Control" as defined in the
Agreement and accelerating the vesting of options previously granted to
Employee;
WHEREAS, the Company and Employee have agreed to execute and deliver
this Amendment to satisfy such condition and as a further inducement to
Xxxxxx and Xxxxxx Sub to enter into the transactions contemplated in the
Investment Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Company and Employee agree as
follows:
SECTION 1(b) - DEFINITIONS. "Change in Control." Amend subsection (b)
of Section 1 to add the following sentence to the end of the subparagraph:
"Notwithstanding the foregoing, none of the transactions
contemplated by that certain Investment Agreement, dated as of
February 10, 1998, among Xxxxxx Corporation, a Kansas corporation,
Xxxxxx Communications Company, LP, a Delaware limited partnership,
the Company, Newco, Inc., a Delaware corporation and Newco Sub, a
Delaware corporation (the "Investment Agreement") or any Ancillary
Agreements, as defined in the Investment Agreement (including,
without limitation, the conversion of the Convertible Preferred
Stock and/or the Convertible Notes, each as defined in the
Investment Agreement) either individually or in the aggregate,
shall be deemed to be a "Change in Control
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Event", unless it constitutes a Business Combination that is not a
Discriminatory Transaction, as defined in the Investment Agreement."
This Amendment, and the rights of the parties hereunder, shall be
governed by and construed in accordance with the laws of the State of
California.
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IN WITNESS WHEREOF, Employee and the Company have executed and delivered
this Second Amendment as of the date first shown above.
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx
THE COMPANY:
EARTHLINK NETWORK, INC.
By: /s/ Sky X. Xxxxxx
-------------------------------------
Title: Founder and Chairman
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