AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.4*
*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 April 1,
2008 (the “Effective Date”) between, EasyLink Services International Corporation (the “Company”)
and Xxxx Xxxxx (“Xxxxx”). This Agreement amends, restates and supersedes the Employment Agreement
(the “Original Agreement”) between the Company and Xxxxx effective as of December 1, 2007 (the
“Original Effective Date”).
In consideration of the mutual covenants and conditions set forth herein, the parties hereby
agree as follows:
1. Employment. The Company hereby employs Xxxxx in the capacity of Vice President of Worldwide
Product Management. Xxxxx 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. Xxxxx 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 of one year, commencing on the
Original Effective Date and ending on the first anniversary of such date (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 the first anniversary of the Original Effective Date and each
anniversary thereafter, the Employment Period shall automatically extend for an additional one year
upon each such anniversary. Xxxxx’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 Xxxxx’x duties hereunder, the Company shall pay Xxxxx (i)
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).
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3.2 Annual Cash Incentive. Xxxxx 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 Xxxxx’x
employment subsequent to Fiscal 2008. If the Company fails to negotiate a new Cash Incentive Plan
for any year after Fiscal 2008, 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 Xxxxx the benefits as described on Exhibit B
attached hereto.
3.4 Reimbursement of Expenses. Xxxxx 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 Xxxxx 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 Xxxxx for such actual and
reasonable expenses no later than the last day of the calendar year following the calendar year in
which Xxxxx incurs the reimbursable expense.
3.5 Equity Grants. The parties incorporate the terms of Exhibit A attached hereto regarding
equity grants, provided however, that upon any Change in Control of the Company as defined in
Section 4 of this Agreement or if Xxxxx’x employment is terminated under Sections 5.1(b), (d)
or (e) of this Agreement, any of Xxxxx’x equity grants that have 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 40% 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
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(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 40% of the
combined voting power of such corporation’s outstanding voting securities.
5. Termination.
5.1 Termination Events. Xxxxx’x employment hereunder will terminate upon the occurrence of any
of the following events:
(a) Death;
(b) Disability: If Xxxxx 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
Xxxxx or his personal representative setting forth specifically the nature of the disability
and the resulting performance failures and Xxxxx’x failure to cure the cited performance
failures within ten days of receipt of such notice, the Company may discharge Xxxxx;
(c) Cause: As used in this Agreement, “Cause” shall mean:
| (i) | Xxxxx’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 Xxxxx for Cause, the Board shall give a written statement of findings to
Xxxxx setting forth specifically the grounds on which Cause is based, and Xxxxx shall
have a period of ten days thereafter to respond in writing to the Board’s findings; or |
| (ii) | Xxxxx’x willful and continued failure to substantially perform his duties with
the Company (other than any failure resulting from 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 Xxxxx specifying
the nature of the misconduct or performance deficiency and giving Xxxxx 20 days to cure
such deficiency. For purposes of this subsection (ii), no act or failure to act on
Xxxxx’x part shall be considered “willful” if done, or omitted to be done, by Xxxxx in
good faith and with reasonable belief that Xxxxx’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
the Employee in good faith and in the best interests of the Company; |
(d) Without Cause: The Board may terminate Xxxxx by issuing at least 30 days’ advance
written notice, subject to the severance provisions set forth below;
(e) By Xxxxx With Cause: Xxxxx 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 Xxxxx provided, however, that Xxxxx 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, Xxxxx then must terminate his employment within 12 months of
the initial existence of the condition; or
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(f) By Xxxxx Without Cause: Xxxxx 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 Xxxxx’x prior written consent, that results in:
(1) A material diminution in Xxxxx’x authority, duties or responsibilities;
(2) A material diminution in Xxxxx’x base compensation;
(3) A material diminution in the authority, duties or responsibilities of the
supervisor to whom Xxxxx is required to report;
(4) A material diminution in the budget over which Xxxxx retains authority; and
(5) A material change in the geographic location of the Company, as located at the time
of this Agreement, at which Xxxxx performs his duties.
5.2 Effects of Termination.
(a) Upon termination of Xxxxx’x employment hereunder for any reason, the Company will
promptly (but in no event later than 30 days after termination of engagement) pay Xxxxx all
compensation owed to Xxxxx and unpaid through the date of termination (including, without
limitation, salary and employee expense reimbursements).
(b) In addition, if Xxxxx’x employment is terminated under Sections 5.1 (b), (d)
or (e), the Company shall also pay Xxxxx an aggregate severance amount equal to 12 months of
Xxxxx’x then-applicable base monthly salary plus any target Annual Cash Incentive that would
have accrued for the fiscal year in which the termination occurred, which aggregate amount
shall be paid in equal, or as nearly equal as practicable, installments in accordance with
the Company’s then-existing standard payroll policies (including payroll deductions) as if
the payments were being made in equal installments over the following 12 months (no less
frequently than monthly), starting with the first payroll payment date following Xxxxx’x
termination of employment until the 15th day of the third-month period following
the end of (i) the calendar year or (ii) the fiscal year of the Company, whichever is later,
which includes the termination of Xxxxx’x employment, at which time all remaining amounts
shall be paid in a single lump sum no later than such 15th day of the third month
following the end of (i) the calendar year or (ii) the fiscal year of the Company, whichever
is later, in which Xxxxx’x employment terminates, or, if earlier, after all such payments
have been made.
(c) The Company shall have the right to offset against any damages resulting from a
breach by Xxxxx 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 Xxxxx, from earliest
to latest, and then to recover any amounts previously paid.
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5.3 Restrictive Covenants. Upon termination of Xxxxx’x employment hereunder for any reason,
Xxxxx agrees that for the one-year period following the termination of employment, Xxxxx will not:
(a) directly or indirectly, within a ten-mile radius of Xxxxx’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 Xxxxx 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.
Xxxxx 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 Xxxxx 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. Xxxxx agrees that the existence of any
claim or cause of action of Xxxxx 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. During the term of this Agreement and for 36 months after Xxxxx’x
termination of employment with the Company, Xxxxx will continue to be bound by the terms of that
certain Confidentiality Agreement entered into between Xxxxx and the Company on or about December
1, 2007.
7. General Provisions.
7.1 Assignment. Xxxxx 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.
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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 that certain Employment
Agreement dated December 1, 2007.
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.
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 Xxxxx, to:
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx, Xxxxxxx 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.
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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 of any other provision of this Agreement.
7.10 Legal Fees and Expenses. In the event of any disputes under this Agreement, each party
shall be responsible for his or its own legal fees and expenses that may be incurred in resolving
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.
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 Xxxxx 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 Xxxxx 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
Xxxxx’x “separation from service” within the meaning of Section 409A of the Code or, if earlier the
date of Xxxxx’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 Xxxxx 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 Xxxxx 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written
| /s/ Xxxx Xxxxx | ||||
| Xxxx Xxxxx | ||||
| EasyLink Services International Corporation | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxxx | ||||
| Title: CEO | ||||
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EXHIBIT A
2008 Compensation Plan
Xx. Xxxx Xxxxx, Vice President Worldwide Product Management
SALARY
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
You shall have the opportunity to earn a cash incentive based on the Company’s and your
personal performance during Fiscal 2008. The Company, through the Compensation Committee of the
Board of Directors, retains the right to adjust your cash incentive plan at any time as business
circumstances or other factors reasonably dictate.
Your targeted annual incentive compensation (“Bonus”) for Fiscal 2008 is $100,000. Payment of
2008 incentive compensation will be at fiscal year end (but no later than as set forth in your
Employment Agreement) and will based on a combination of 25% payout on personal objectives and 75%
payout on Company objectives as noted below:
COMPANY OBJECTIVES
| 1. | Total revenue of $[XXXXXXXX] — half of the executive’s Company Bonus will be
earned if the Company achieves a minimum of $[XXXXXXXX] in total revenue for FY 2008.
Bonus payout starts at 91% of plan and is linear for performance to 100%; thereafter
the executive will be eligible to receive an additional 1% for each additional 10% in
revenue above the plan. |
| 2. | Operating income of $[XXXXXXXX] — the other half of the executive’s Company
based performance bonus will be earned if the Company achieves a minimum of $[XXXXXXXX]
in operating income for FY 2008. Bonus payout starts at 91% of plan and is linear for
performance to 100%; thereafter the executive will be eligible to receive an additional
1% for each additional 10% in operating income above the plan. |
PERSONAL OBJECTIVES
To be determined.
Payment of 2008 Bonus will be at fiscal year end and will be determined by the Compensation
Committee of the Board of Directors prior to the end of Fiscal 2008.
LONG TERM STOCK INCENTIVE
On execution of your Original Agreement, you received a one time grant of 30,000 restricted
shares of the Company’s class A common stock. The restricted shares are to vest one third (1/3 or
10,000 options) at the end of the first year following grant and monthly thereafter for twenty-four
(24) months. The restricted stock grant was 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, a stock option
plan 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.
