AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.5*
*CONFIDENTIAL TREATMENT
CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO THE RULES AND REGULATIONS OF
THE SECURITIES AND EXCHANGE COMMISSION. “X” HAS BEEN USED TO IDENTIFY INFORMATION WHICH IS SUBJECT
TO A CONFIDENTIAL TREATMENT REQUEST.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”) is entered into on September
28, 2009 (the “Effective Date”) between EasyLink Services International Corporation (the “Company”)
and Xxxxx X. Xxxxxx (“Xxxxxx”). This Agreement amends, restates and supersedes the Employment
Agreement (the “Prior Agreement”) between the Company and Xxxxxx entered into on November 4, 2008.
In consideration of the mutual covenants and conditions set forth herein, the parties hereby
agree as follows:
1. Employment. The Company hereby employs Xxxxxx in the capacity of Executive Vice President
of Operations. Xxxxxx accepts such employment and agrees to perform such services as are customary
to such office and as shall from time to time be assigned to him by the Company’s Chief Executive
Officer. Xxxxxx will perform his duties so as to cause the Business of the Company to be operated
in accordance with an annual operating plan and budget developed jointly by the Board and the
Company and approved by the Board. For purposes of this Agreement, the “Business” of the Company
is to provide business-to-business supply chain data interchange in multiple electronic formats.
2. Term. The employment hereunder shall be for a period commencing on the Effective Date and
ending on November 1, 2010 (the “Employment Period”). Unless either party elects not to extend the
term of this Agreement by so notifying the other in writing at least 30 days prior to November 1,
2010 and November 1 of each year thereafter, the Employment Period shall automatically extend for
an additional one year period upon November 1 of each such year. Xxxxxx’x employment will be on a
full-time basis requiring the devotion of such amount of his productive time as is necessary for
the efficient operation of the Business of the Company.
3. Compensation and Benefits.
3.1 Salary. For the performance of Xxxxxx’x duties hereunder, the Company shall pay Xxxxxx an
annual base salary in the amount as provided on Exhibit A, a copy of which is attached hereto and
incorporated herein by reference, payable in accordance with the Company’s standard payroll
policies, which may be changed from time to time (but in no case less frequently than monthly).
3.2 Annual Cash Incentive. Xxxxxx will receive the opportunity to earn an annual cash
incentive pursuant to the terms of Exhibit A attached hereto (the “Annual Cash Incentive”). The
Company agrees to negotiate in good faith a new Annual Cash Incentive Plan for each year of
Xxxxxx’x employment subsequent to Fiscal 2010. If the Company fails to negotiate a new Cash
Incentive Plan for any year after Fiscal 2010, then the Annual Cash Incentive in effect for the
preceding year will govern. Notwithstanding any of the provisions of this Agreement, the Annual
Cash Incentive, to the extent payable for any fiscal year of the Company, will be paid no later
than the 15th day of the third month following the end of the fiscal year of the Company
to which the Annual Cash Incentive relates.
3.3 Benefits. The Company shall provide to Xxxxxx the benefits as described on Exhibit B
attached hereto.
3.4 Reimbursement of Expenses. Xxxxxx shall be entitled to be reimbursed for all actual and
reasonable expenses, including but not limited to, expenses for travel, meals and entertainment,
incurred by Xxxxxx in connection with and reasonably related to the furtherance of the Company’s
Business, per Company travel guidelines in effect from time to time. Subject to the Company travel
guidelines in effect from time to time, the Company will reimburse Xxxxxx for such actual and
reasonable expenses no later than the last day of the calendar year following the calendar year in
which Xxxxxx incurs the reimbursable expense.
3.5 Equity Grants. The parties incorporate the terms of Exhibit A attached hereto regarding
the equity grants described therein, provided however, that upon any Change of Control of the
Company as defined in Section 4 of this Agreement or if Xxxxxx’x employment is terminated under
Sections 5.1(b), (d) or (e) of this Agreement, any of Xxxxxx’x equity-based incentive compensation
(whether granted pursuant to this Agreement or otherwise) that has not yet vested will vest
immediately.
4. Change of Control. For the purposes of this Agreement, the term “Change of Control” shall
mean a change in the beneficial ownership of the Company’s voting stock pursuant to which:
(a) any “person,” including a “syndicate” or “group” as those terms are used in Section
13(d)(3) of the Securities Exchange Act of 1934, is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company’s then outstanding “Voting Securities,” which is any
security that ordinarily possesses the power to vote in the election of the board of
directors of a corporation without the happening of any precondition or contingency; or
(b) the Company is merged or consolidated with another corporation and immediately
after giving effect to the merger or consolidation less than 50% of the outstanding Voting
Securities of the surviving or resulting entity are then beneficially owned in the aggregate
by either the shareholders of the Company immediately prior to such merger or consolidation,
or, if a record date has been set to determine the shareholders of the Company entitled to
vote on such merger or consolidation, the shareholders of the Company as of such record
date; or
2
(c) the Company transfers substantially all of its assets to another corporation, other
than a corporation of which the Company owns, directly or indirectly, at least 50% of the
combined voting power of such corporation’s outstanding voting securities.
5. Termination.
5.1 Termination Events. Xxxxxx’x employment hereunder will terminate upon the occurrence of
any of the following events:
(a) Death;
(b) Disability: If Xxxxxx is unable perform the duties assigned to him hereunder for a
continuous period exceeding 90 days by reason of injury, physical or mental illness or other
disability, which condition has been certified by a physician; then, upon written notice to
Xxxxxx or his personal representative setting forth specifically the nature of the
disability and the resulting performance failures and Xxxxxx’x failure to cure the cited
performance failures within ten days of receipt of such notice, the Company may discharge
Xxxxxx;
(c) Cause: As used in this Agreement, “Cause” shall mean:
| (i) | Xxxxxx’x conviction of (or pleading guilty or nolo contendere to) a felony or
any misdemeanor involving dishonesty or moral turpitude; provided, however, that prior
to discharging Xxxxxx for Cause, the Board shall give a written statement of findings
to Xxxxxx setting forth specifically the grounds on which Cause is based, and Xxxxxx
shall have a period of ten days thereafter to respond in writing to the Board’s
findings; or |
| (ii) | Xxxxxx’x willful and continued failure to substantially perform his duties with
the Company (other than any failure resulting from death, illness or disability) that
has, or can reasonably be expected to have, a direct and material adverse monetary
effect on the Company, provided that the Board has tendered written notice to Xxxxxx
specifying the nature of the misconduct or performance deficiency and giving Xxxxxx 20
days to cure such deficiency. For purposes of this subsection (ii), no act or failure
to act on Xxxxxx’x part shall be considered “willful” if done, or omitted to be done,
by Xxxxxx in good faith and with reasonable belief that Xxxxxx’x action or omission was
in the best interest of the Company. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to be
done, by Xxxxxx in good faith and in the best interests of the Company; |
(d) Without Cause: The Board may terminate Xxxxxx by issuing at least 30 days’ advance
written notice, subject to the severance provisions set forth below;
(e) By Xxxxxx With Cause: Xxxxxx may terminate his employment due to either (i) a
material default by the Company in the performance of any of its obligations hereunder, or
(ii) an Adverse Change in Duties (as defined below), which default or Adverse Change in
Duties remains unremedied by the Company for a period of 30 days following its receipt of
written notice thereof from Xxxxxx provided, however, that Xxxxxx must provide written
notice to the Company of the condition which would constitute cause for terminating his
employment hereunder within 90 days of the initial existence of the condition, and, assuming
such default or Adverse Change in Duties remains unremedied by the Company after the
30-day period set forth above, Xxxxxx then must terminate his employment within 12 months of
the initial existence of the condition; or
3
(f) By Xxxxxx Without Cause: Xxxxxx may terminate his employment for any reason upon
the furnishing of at least 30 days’ advance written notice to the Board.
As used herein, “Adverse Change in Duties” means an action or series of actions taken by the
Company, without Xxxxxx’x prior written consent, that results in:
(1) A material diminution in Xxxxxx’x authority, duties or responsibilities;
(2) A material diminution in Xxxxxx’x base compensation;
(3) A material diminution in the authority, duties or responsibilities of the
supervisor to whom Xxxxxx is required to report;
(4) A material diminution in the budget over which Xxxxxx retains authority; and
(5) A material change in the geographic location of the Company, as located at the time
of this Agreement, at which Xxxxxx performs his duties.
5.2 Effects of Termination and Change of Control.
(a) Upon termination of Xxxxxx’x employment hereunder for any reason, the Company will
promptly (but in no event later than 30 days after termination of engagement) pay Xxxxxx all
compensation owed to Xxxxxx and unpaid through the date of termination (including, without
limitation, salary and employee expense reimbursements).
(b) In addition, upon any Change of Control of the Company as defined in Section 4 of
this Agreement or if Xxxxxx’x employment is terminated under Sections 5.1 (b), (d) or (e),
the Company shall also pay Parker a severance amount equal to the sum of (A) Xxxxxx’x
then-applicable annual base salary plus (B) the Target Annual Cash Incentive for the fiscal
year in which the termination or Change of Control, as applicable, occurred. Such severance
amount shall be paid in a single lump sum within thirty days of the date of termination or
consummation of a Change of Control, as applicable. Notwithstanding anything to the
contrary contained in the foregoing, Xxxxxx is entitled to only one such severance payment
pursuant to this Section 5.2(b) regardless of the occurrence of multiple events that would
result in such severance payment.
(c) The Company shall have the right to offset against any damages resulting from a
breach by Xxxxxx of Section 5.3 or Section 6 of this Agreement, in which case, such offset
shall be applied in full against the payments remaining to be paid to Xxxxxx, from earliest
to latest, and then to recover any amounts previously paid.
4
5.3 Restrictive Covenants. Upon termination of Xxxxxx’x employment hereunder for any reason,
Xxxxxx agrees that for the one-year period following the termination of employment, Xxxxxx will
not:
(a) directly or indirectly, within a ten-mile radius of Xxxxxx’x office at the Company,
whether for his own account or as an individual, employee, director, consultant or advisor,
or in any other capacity whatsoever, provide services that are substantially similar to the
services he provided to the Company to any person, firm, corporation or other business
enterprise that competes with the Business of the Company, unless he obtains the prior
written consent of the Board;
(b) directly or indirectly encourage or solicit, or attempt to encourage or solicit, on
behalf of any person, firm, corporation or other business enterprise that competes with the
Business of the Company, any individual to leave the Company’s employ for any reason or
interfere in any other manner with the employment relationships at the time existing between
the Company and its current or prospective employees; or
(c) induce or attempt to induce, on behalf of any person, firm, corporation or other
business enterprise that competes with the Business of the Company, any provider, payor,
customer, supplier, distributor, licensee or other business relation of the Company with
whom Xxxxxx dealt at any time during the two-year period preceding his termination of
employment to cease doing business with the Company or in any way interfere with the
existing business relationship between any such customer, supplier, distributor, licensee or
other business relation described above and the Company.
Xxxxxx acknowledges that monetary damages will not be sufficient to compensate the Company for
any economic loss that may be incurred by reason of breach of the foregoing restrictive covenants.
Accordingly, in the event of any such breach, the Company shall, in addition to any remedies
available to the Company at law, be entitled to obtain equitable relief in the form of an
injunction precluding Xxxxxx from continuing to engage in such breach.
In the event that any of the foregoing restrictive covenants are too broad to be enforceable,
the parties request and agree that they may be reduced to such lesser breadth as may be necessary
to make them enforceable. The covenants in this Section 5.3 shall be construed as an agreement
independent of any other agreement between the parties. Xxxxxx agrees that the existence of any
claim or cause of action of Xxxxxx against the Company, whether predicated upon this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of these covenants.
6. Confidentiality and Other Agreements. Xxxxxx will continue to be bound by the terms of any
confidentiality, non-competition, non-solicitation and assignment of intellectual property rights
agreements previously entered into between Xxxxxx and the Company.
7. General Provisions.
7.1 Assignment. Xxxxxx may not assign or delegate any of his rights or obligations under this
Agreement. The Company may assign its rights and obligations under this Agreement to any successor
to the Company through merger, consolidation, sale or the like.
7.2 Entire Agreement. This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes any and all prior agreements between the
parties relating to such subject matter, including without limitation the Prior Agreement.
7.3 Modifications. This Agreement may be changed or modified only by an agreement in writing
signed by the party against whom enforcement is sought.
5
7.4 Successors and Assigns. The rights and duties under this Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their successors and assigns, legal
representatives, heirs, legatees, distributees, assigns and transferees by operation of law,
whether or not any such person or entity shall have become a party to this Agreement and have
agreed in writing to join and be bound by the terms and conditions hereof.
7.5 Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Georgia.
7.6 Severability; Partial Invalidity. If any provision of this Agreement or any instrument or
document delivered in connection herewith is held to be illegal, invalid or unenforceable under
present or future laws effective during the term of this Agreement (the “Offending Provision”), the
Offending Provision shall be fully severable; this Agreement shall be construed and enforced as if
the Offending Provision had never comprised a part of this Agreement; and the remaining provisions
of this Agreement shall remain in full force and effect and shall not be affected by the Offending
Provision or by its severance from this Agreement. Furthermore, in lieu of the Offending
Provision, there shall be added automatically as a part of this Agreement a provision as similar in
terms to the Offending Provision as may be possible and be legal, valid and enforceable.
7.7 Further Assurances. The parties will execute such further instruments and take such
further actions as may be reasonably necessary to carry out the intent of this Agreement.
7.8 Notices. Any notices or other communications required or permitted hereunder shall be in
writing and shall be deemed received by the recipient when delivered personally or, if mailed, five
(5) days after the date of deposit in the United States mail, certified or registered, postage
prepaid and addressed, in the case of the Company, to:
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
and, in the case of Xxxxxx, to:
000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxx, XX 00000
or to such other address as either party may later specify by at least ten (10) days’ advance
written notice delivered to the other party in accordance herewith.
7.9 No Waiver. The failure of either party to enforce any provision of this Agreement shall
not be construed as a waiver of that provision, nor prevent that party thereafter from subsequently
enforcing that provision or any other provision of this Agreement.
7.10 Legal Fees and Expenses. In the event of any disputes arising under or related to this
Agreement, the prevailing party shall be entitled to be paid its reasonable attorneys’ fees and
litigation expenses incurred in connection with such dispute from the other party to such dispute.
7.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same instrument.
6
7.12 Omnibus 409A Provision. This Agreement is intended to be exempt from treatment as
deferred compensation under Section 409A of the Internal Revenue Code (the “Code”) and shall be
construed and interpreted in accordance therewith. All rights to payments under this Agreement
shall be treated as rights to receive a series of separate payments to the fullest extent permitted
by Section 409A of the Code. Notwithstanding the preceding, the Company shall not be liable to
Xxxxxx or any other person if the Internal Revenue Service or any court or other authority having
jurisdiction over such matter determines for any reason that any payment under this Agreement is
subject to taxes, penalties or interest as a result of failing to comply with Section 409A of the
Code.
Notwithstanding any of the provisions of this Agreement, if Xxxxxx is a “specified employee”
(within the meaning of Section 409A of the Code), and any payments hereunder are not otherwise
exempt from Section 409A of the Code, then, to the extent necessary to comply with Section 409A of
the Code, no payments may be made hereunder before the date which is six months after the date of
Xxxxxx’x “separation from service” within the meaning of Section 409A of the Code or, if earlier
the date of Xxxxxx’x death. Because the amounts payable hereunder will be made in all events no
later than the 15th day of the third month following the end of (i) the calendar year or
(ii) the fiscal year of the Company in which Xxxxxx terminates employment, whichever is later, then
all amounts payable hereunder should be exempt from Section 409A of the Code as a short-term
deferral. Consequently, this “specified employee” six-month delay provision will only be
applicable if it is subsequently determined that the amounts to be paid pursuant to this Agreement
are not exempt from Section 409A of the Code. For purposes hereof, termination of employment shall
be read to mean a “separation from service” within the meaning of Section 409A of the Code where it
is reasonably anticipated that no further services would be performed after such date or that the
level of bona fide services Xxxxxx would perform after that date (whether as an employee or an
independent contractor) would permanently decrease to no more than 20 percent of the average level
of bona fide services performed over the immediately preceding 36-month period.
7
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
| EasyLink Services International Corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | CFO | |||
EXHIBIT A
Fiscal 2010 Compensation Plan
Xxxxx Xxxxxx, Executive Vice President of Operations
SALARY FOR FISCAL 2010
For Fiscal 2010 (and each fiscal year thereafter, unless otherwise determined by the Company),
the Company shall pay you a salary of $200,000 annually. The Company, through the Compensation
Committee of the Board of Directors, will review your salary annually and, in its sole discretion,
may increase but not decrease your salary as appropriate, subject to the approval of the
Compensation Committee of the Board of Directors.
ANNUAL CASH INCENTIVE FOR FISCAL 2010
You shall have the opportunity to earn an Annual Cash Incentive based on the Company’s and
your personal performance during Fiscal 2010. The Company, through the Compensation Committee of
the Board of Directors, retains the right to adjust your Annual Cash Incentive plan at any time as
business circumstances or other factors reasonably dictate.
Your targeted Annual Cash Incentive for Fiscal 2010 is $50,000 (the “Target Annual Cash
Incentive”). With respect to the Annual Cash Incentive for Fiscal 2010, the Compensation Committee
will determine the payout of this amount based on a combination of 50% payout on satisfaction of
item 1 of the Company objectives relating to Company revenue (the “Company Revenue Bonus”) and 50%
payout on item 2 of the Company objectives relating to Company EBITDA (the “Company EBITDA Bonus”),
as provided below:
COMPANY OBJECTIVES
| 1. | Total revenue of $[XXXXXXXX] (the “2010 Revenue Target”) — The Company Revenue
Bonus will be earned if the Company achieves a minimum total revenue for Fiscal 2010
equal to the 2010 Revenue Target, in accordance with and subject to the following.
None of the Company Revenue Bonus will be earned if the Company achieves total revenue
for Fiscal 2010 equal to or less than 90% of the 2010 Revenue Target. If the Company
achieves total revenue for Fiscal 2010 greater than 90% and less than or equal to 100%
of the 2010 Revenue Target, then the percentage of the Company Revenue Bonus earned
will equal approximately (i) 10, times (ii) a percentage equal to (a) the actual amount
of total revenue for Fiscal 2010 divided by the 2010 Revenue Target, minus (b) 0.9. If
the Company achieves total revenue for Fiscal 2010 in excess of 100% of the 2010
Revenue Target, then the percentage of the Company Revenue Bonus earned will equal 100%
plus an amount (the “Additional Company Revenue Bonus”) equal to 6.8% of the Company
Revenue Bonus for every .1% by which the total revenue for Fiscal 2010 exceeds the 2010
Revenue Target. |
| 2. | EBITDA of $[XXXXXXXX] (the “2010 EBITDA Target”) — The Company EBITDA Bonus
will be earned if the Company achieves a minimum EBITDA for Fiscal 2010 equal to the
2010 EBITDA Target, in accordance with and subject to the following. None of the
Company EBITDA Bonus will be earned if the Company achieves EBITDA for Fiscal 2010
equal to or less than 90% of the 2010 EBITDA Target. If the Company achieves EBITDA
for Fiscal 2010 greater than 90% and less than or equal to 100% of the 2010 EBITDA
Target, then the percentage of the Company EBITDA Bonus earned will equal approximately
(i) 10, times (ii) a percentage equal to (a) the actual amount of EBITDA for Fiscal
2010 divided by the 2010 EBITDA Target, minus (b) 0.9. If the Company achieves EBITDA
for Fiscal 2010 in excess of 100% of the 2010 EBITDA Target, then the percentage of the
Company EBITDA Bonus earned will equal 100% plus an amount (the “Additional Company
EBITDA Bonus”) equal to 6.8% of the Company EBITDA Bonus for every .1% by which the
EBITDA for Fiscal 2010 exceeds the 2010 EBITDA Target. For purposes of this paragraph,
EBITDA shall mean net profit before taxes, interest expense (net of capitalized
interest expense), depreciation expense and amortization expense, all in accordance
with GAAP, excluding stock-based compensation expense, incentive compensation expense,
cumulative effect of accounting changes and one-time, nonrecurring items; provided,
however, that for purposes of calculation of the Additional Company EBITDA Bonus,
EBITDA shall be adjusted for the amount of any Additional Company Revenue Bonus and
Additional Company EBITDA Bonus payable under this Agreement or any other compensation
agreement between the Company and an executive officer. |
LONG TERM STOCK INCENTIVE
On September 28, 2009, the Company will grant you options for the purchase of 75,000 shares of
the Company’s class A common stock with an exercise price equal to the NASDAQ closing price on
September 25, 2009 with such options to vest in 36 equal monthly installments on the first of the
month, beginning on November 1, 2009. The stock option grant will be granted pursuant to the terms
of, and evidenced by, a written agreement entered into between you and the Company.
EXHIBIT B
Benefits
You will be eligible to participate in benefit plans and/or programs which the Company may
offer to its employees or executives from time to time. Your eligibility for such plans and/or
programs will be determined by the terms of such plans and/or programs. Among the benefits
currently offered by the Company to its employees are medical and dental insurance and a 401k plan,
which are described below. Please be advised, however, that the Company reserves the right to
amend, modify, or terminate any of its benefits plans and/or programs at any time in its sole
discretion. You will be eligible for three weeks vacation in accordance with the Company’s accrual
policy.
Medical Insurance. Currently, the Company offers its employees medical insurance. The
Company currently contributes a portion of your premium for employee coverage, and you will be
responsible for contributing for additional family coverage through pre-tax payroll deduction.
Dental Insurance. The Company presently offers its employees dental insurance. The
Company currently contributes a portion of your premium for employee coverage, and you will be
responsible for contributing for additional family coverage through pre-tax payroll deduction.
401k Plan. The Company presently offers its employees a 401k plan with a Company match to
be determined annually by the Compensation Committee of the Board of Directors. You may elect to
contribute pre-tax deferrals through payroll deduction pursuant to the terms of the 401k plan.
