EXHIBIT 10.2
March 30, 2005
Xxxxx XxXxxxxxx
000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Dear Xxxxx:
This Agreement sets forth the revised separation package that EasyLink
Services Corporation (the "Company") is willing to provide to you. The terms of
that agreement are set forth below. If you agree with these terms, please sign
and date this letter in the space provided at the end, and return it to me. Once
I have received this letter signed by you, it will become our Agreement.
1. Your employment with the Company will terminate effective upon the
earlier of (a) December 31, 2005 and (b) the date of your acceptance of
employment from another company (such date of termination, the "Termination
Date"). As used herein, the "Transition Date" means the earlier of (i) the date
specified in a written notice from the Company to you, which date shall not be
earlier than April 16, 2004, and (ii) the date specified in a written notice
from you to the Company if you voluntarily terminate your employment with the
Company before April 16, 2004. From the Transition Date until the Termination
Date, you shall perform such duties, if any, as may be assigned to you by, and
in the sole discretion of, the Chief Executive Officer and President, and/or the
Vice President and Chief Financial Officer, of the Company.
2. Subject to the terms and conditions of this letter, your continued
compliance with your employment agreement and provided that you are not
terminated for misconduct and that you sign and deliver to the Company upon, or
within forty-five (45) day period after, the Transition Date the release in the
form contemplated by paragraph 5 hereof, the Company agrees to pay you salary
continuation after the Transition Date (a) during the period from the Transition
Date until April 16, 2005 at the rate equal to 50% of your current base salary
and (b) thereafter, until July 16, 2006 at the rate equal to 100% of your
previous base salary, less all appropriate withholdings (the "Salary
Continuation Payments"), payable over the period so specified after the
Transition Date (the "Salary Continuation Period") in accordance with the
Company's normal payroll practices. All Salary Continuation Payments made after
the Termination Date shall be deemed to be post-employment severance payments.
You acknowledge and agree that the Company had no previous contractual
obligation to pay you the Salary Continuation Payments. You shall not be
eligible to receive a bonus.
The Company also agrees to reimburse up to $30,000 in the aggregate of
your out of pocket expenses for (A) CPA continuing education through 2005, (B)
legal and other expenses incurred in connection with applications before the CPA
and other administrative bodies and (C) outplacement services and related costs.
3. Subject to earlier termination as provided below, until the
Termination Date, you shall be entitled to participate in the Company's health
plan as in effect from time to time on the same terms and conditions as other
employees of EasyLink. The employee portion of the costs of such health benefits
shall be deducted from your periodic salary payments in accordance with the
Company's practices and policies in effect from time to time. Your right to
participate in the health plan shall terminate upon your acceptance of
employment from another company that offers participation in a health plan. Your
right to participate during the period through the Termination Date in other
benefits made available by the Company to executives or employees generally
shall be determined at the sole discretion of the Company.
4. Subject to the terms of the Company's applicable Stock Option Plans
(the "Option Plan") and the Stock Option Agreements (the "Option Agreement")
governing the stock options granted to you, your stock options shall continue to
vest through the Termination Date. In further consideration of the terms and
conditions of this letter and provided that you comply with your employment
agreement, you are not terminated for misconduct, as provided in the option
agreements governing your options, you shall be entitled to exercise any vested
options until the date which is eighteen (18) months after the Termination Date.
Thereafter, any options that have not been exercised will automatically be
forfeited.
The taxation of your stock options may be affected by how and when you
exercise. For example, if you hold "incentive stock options," the taxation of
your exercise may be affected by whether you exercise during the three (3) month
period following your Termination Date and the method of exercise that you
choose. The rules governing the taxation of stock options are complex, and you
are strongly encouraged to consult with your personal tax advisor to plan the
timing and manner of exercising your stock options.
5. You and the officers of the Company agree that neither will make,
nor cause to be made, any statements, observations or opinions, or communicate
any information (whether oral or written) that disparages or is likely in any
way to harm the reputation of the other. You further agree that, in
consideration for the Salary Continuation Payments and other promises herein,
you will act in a professional manner with respect to your separation from the
Company and all procedures relating thereto.
6. The Company's offer to you of this Agreement and the payments and
benefits set forth in this Agreement are not intended to, and shall not be
construed as, any admission of liability by the Company.
7. You acknowledge and agree that you remain subject after the date
hereof and after the last date that you are paid in accordance with your
election to the terms of the employment agreement that you signed as a condition
of your employment with the Company. Without limiting the obligations contained
in any employment agreement or other agreement, you agree to maintain the
confidentiality of all information relating to the Company, including, but not
limited to, the business, finances, customers, trade practices, trade secrets,
developments, methods and know-how of the Company and agree not to disclose any
such confidential information to anyone, or to make any use of any such
confidential information, on your behalf or on behalf of any third party,
without the Company's prior written consent. You further agree to return to the
Company all client lists, computer disks, reports, files, memoranda, records and
software, door and file keys, computer access codes or disks, instructional
manuals and other physical or personal property which you received or prepared
or helped prepare during your employment with the Company. You will not retain
any copies, duplicates, reproductions or excerpts of any such materials. You
further agree to take all necessary actions, if required by and at the cost of
the Company, to vest such property rights in the Company.
8. In view of the nature of your employment and the nature of the
confidential information of the Company to which you have had access during the
course of your employment, you agree that any unauthorized disclosure to third
parties of any such confidential information would cause irreparable damage to
the trade secret status of such information, if applicable, and to the Company,
and that, since the Company would have no adequate remedy at law, in the event
such a disclosure or threatened disclosure is proven, the Company will be
entitled to an injunction, prohibiting you from any such disclosure or attempted
disclosure.
9. In the event the Company breaches this Agreement, you may only
institute an action for specific enforcement of the terms of this Agreement and
seek damages resulting from that breach. You may not institute before any local
or state administrative agency or before any court any proceeding based on any
claims related to your employment with the Company or the termination of your
employment with the Company as released in the general release previously
executed and delivered to the Company by you. The prevailing party in any action
to enforce this Agreement will be entitled to an award of attorneys' fees and
costs in addition to any other legal or equitable relief.
10. The terms described in this Agreement, your employment agreement,
the 2004 Executive Incentive Plan applicable to you, the Stock Option Plans and
your Stock Option Agreements constitute the entire agreement between you and the
Company and may not be altered or modified except in a writing signed by both
you and the Company. In the event of any conflict between the terms of this
Agreement and the terms of your employment agreement, the 2004 Executive
Incentive Plan, the Stock Options Plans, your Stock Option Agreements or the
separation letter dated April 5, 2004, the terms of this Agreement will govern.
The Agreement will be governed by the law of New Jersey without reference to its
choice of law rules.
11. If any one or more of the provisions contained in this Agreement is
held to be excessively broad as to duration, scope or activity, such provision
shall be construed by limiting and reducing the provision so as to be
enforceable to the maximum extent compatible with applicable law. However, the
illegality, unenforceability or overbreadth of such provision shall have no
effect upon, and shall not impair the enforceability of, any other provision of
this Agreement.
If you agree with the terms of this Agreement, please so indicate by
signing and returning this Agreement to me.
Very truly yours,
EASYLINK SERVICES CORPORATION
By s/Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Director, Human Resources
AGREED TO AND ACCEPTED:
s/Xxxxx XxXxxxxxx Dated: March 30, 2005
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Xxxxx XxXxxxxxx
