AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT is entered into this ____ day of
December, 1997, by and between EarthLink Network, Inc. (the "Company"), and
Xxxxxxx X. Xxxxx ("Mr. Xxxxx").
RECITALS
On January 15, 1996 the Company and Mr. Xxxxx entered into that certain
Employment Agreement (the "Employment Agreement") whereby the Company
employed Mr. Xxxxx as its President and Chief Operating Officer. At that
time, Mr. Xxx Xxxxxx, the Company's founder and Chairman of the Board, served
as the Company's Chief Executive Officer. In June 1996, the Board of
Directors acting by written consent appointed Mr. Xxxxx to serve as President
and Chief Executive Officer and appointed Xx. Xxxxxx to serve as Founder and
Chairman. The Employment Agreement, however, was not amended to reflect this
change in title. Furthermore, the Employment Agreement conflicts, in part,
with the intention of the Compensation Committee of the Board of Directors
with respect to the vesting of Mr. Betty's option shares issued, and which
may be issued, to him.
NOW THEREFORE, in consideration of the foregoing premises and for other
valuable and sufficient consideration, the parties agree as follows.
1. CHANGE IN TITLE. The Employment Agreement is amended as follows:
1.1 Section 2(a) - replace the phrase "President and Chief Operating
Officer" with the phrase "President and Chief Executive Officer" and replace
the phrase "Chief Executive Officer or the Board" with the phrase "the Board".
1.2 Section 2(b) - replace the phrase "the Board of Directors or the Chief
Executive Officer" with the phrase "the Board of Directors" and replace the
phrase "the Chief Executive Officer or the Board" with the phrase "the Board".
1.3 Section 4(a)(2) - replace the phrase "the Chief Executive or the
Board" with the phrase "the Board".
1.4 Section 4(b) - replace the phrase "You and the Chief Executive
Officer and/or Board" with the phrase "You and the Board".
1.5 Section 4(f) - replace the phrase "the Chief Executive Officer or
the Board" with the phrase "the Board".
2. "CHANGE IN CONTROL EVENT" DEFINITION. The Employment Agreement is
further amended by deleting the existing definition of "Change in Control
Event" in Section 1(b) and replacing it with the following definition:
"Change in Control Event" shall mean any of the following events:
(a) the execution of an agreement for the sale of all, or a material
portion, of the assets of the Company; (b) the execution of an agreement
for a merger or recapitalization of the Company, or any merger or
recapitalization whereby the Company is not the surviving
entity; (c) the acquisition, directly or indirectly, of the beneficial
ownership of 25% or more of the outstanding voting securities of the
Company by any "person" (within the meaning of that term as it is used
in Section 13(d) of the Securities Exchange Act of 1934, as amended, and
the rules promulgated thereunder); (d) the failure of the current
members of the Company's Board of Directors (the "Board") to constitute
a majority of the Board; or (e) a change of control of the Company as
determined by the Board of Directors in its sole discretion.
3. CONTINUATION. Except as specifically set forth in this Amendment the
Employment Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EARTHLINK NETWORK, INC. XXXXXXX X. XXXXX
By: /s/ Sky X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
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Sky X. Xxxxxx, Founder and Chairman Xxxxxxx X. Xxxxx
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