Amendment No. 2 dated February 16, 2007
To
Employment Agreement dated February 1, 2002
Amendment No. 2 (this "Amendment") dated February 16, 2007 to Employment
Agreement (the "Agreement") dated February 1, 2002, as amended by Amendment No.
1 dated August 8, 2003, between EasyLink Services Corporation ("EasyLink") and
Xxxxxx Xxxxxxxx (the "Executive").
WHEREAS, on June 20, 2006, the Compensation Committee of the Board of
Directors (the "Compensation Committee") approved a form of Uniform Severance
and Change in Control Agreement (the "Uniform Severance Agreement") to be
entered into with certain of the Company's executives, and subsequent to such
approval the Company entered into Uniform Severance Agreements with a number of
the Company's executives;
WHEREAS, the Uniform Severance Agreement provides, among other things, for
a vesting and immediate exercise of all outstanding stock options and other
equity based awards under certain circumstances, including a termination of
employment without cause (the "Change in Control Vesting");
WHEREAS, the Agreement fails to contain change in control provisions
relating to vesting and immediate exercise of all outstanding stock options and
other equity based awards;
WHEREAS the Compensation Committee resolved, by action taken by unanimous
written consent on February 13, 2007, that it is in the best interests of the
Company to amend the Agreement to provide for Change in Control Vesting, in the
same manner as the Uniform Severance Agreement, and approved the amendment of
the Agreement to provide for the same;
WHEREAS, the Company and Executive desire to amend the Agreement on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Company and the Executive hereby agree as follows:
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1. Except as set forth in the amendment to Subpargraph 4 (j) below,
Capitalized terms used herein that are not defined herein shall have the
respective meanings ascribed to such terms in the Agreement.
2. The parties hereto hereby agree that the Agreement is hereby amended as
follows:
a. Section 4 of the Agreement is hereby amended to add the following:
(j) Change of Control Vesting.
(A) If the Company terminates the employment of Employee without Cause
within three months before or six months after a Change of Control, or
Employee terminates his or her employment for Good Reason within six
months after a Change of Control, all of Employee's outstanding stock
options and other equity based awards granted under the Company's equity
incentive plans or pursuant to individual agreements with the Company
shall become fully vested and exercisable.
(B) Except as set forth in the next sentence, capitalized terms used in
this subparagraph (j) shall have the respective meanings ascribed to such
terms in the Uniform Severance Agreement. As used in this subparagraph
(j), and in the Uniform Severance Agreement, "Employee" shall mean Xxxxxx
X. Xxxxxxxx, and all references to the word "Agreement" in the Uniform
Severance Agreement shall be deemed to be references to this subparagraph
(j), except that the reference to the word "Agreement" in Section I,
paragraph F. (iii) shall be deemed to be a reference to this Amendment.
(C) Anything in the Agreement to the contrary notwithstanding, the terms
and provisions of this subparagraph (j) shall have an initial term of
three years and shall expire on February 15, 2010, unless renewed by the
Company upon the approval of the Compensation Committee on or before such
date.
3. Except as amended hereby, all of the provisions of the Agreement shall
remain in full force and effect.
4. The provisions of Section 8 of the Agreement, as amended by Amendment
No. 1, shall apply, mutatis mutandis, to this Amendment.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first written above.
EASYLINK SERVICES CORPORATION
By: /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Vice President
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
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