Exhibit 10.1
Amendment No. 1 dated August 8, 2003
To
Employment Agreement dated February 1, 2002
Amendment No. 1 (this "Amendment") dated August 8, 2003 to Employment
Agreement (the "Agreement") dated February 1, 2002 between EasyLink Services
Corporation ("EasyLink") and Xxxxxx Xxxxxxxx (the "Executive").
WHEREAS, the Company and the Executive desire to amend the Agreement on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements herein set forth, the Company and the Executive hereby
agree as follows:
1. 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 as that the Agreement is amended as
follows:
a. Section 4(d) of the Agreement is hereby amended to read in its
entirety as follows:
"(d)Termination Without Cause. If the Company terminates the
Executive's employment without Cause, the Executive will be
entitled to receive either (i) continuation of his base salary
plus his target bonus for the year in which the termination has
occurred (assuming performance at the 100% level for all
applicable measures) and participation in the Company's standard
health insurance and 401(k) plans for 12 months after the date of
termination or (ii) a lump sum equal to 12 months base salary plus
his target bonus for the year in which the termination has
occurred (assuming performance at the 100% level for all
applicable measures). Thereafter, except for the obligations under
Section 4(h) and (i), the Company shall have no further obligation
to the Executive under this Agreement."
b. Section 4(f) of the Agreement is hereby amended to read in its
entirety as follows:
"(f) Resignation For Good Reason. Executive may terminate his
employment hereunder for Good Reason, provided Executive shall
have delivered a Notice of Resignation for Good Reason to the
Corporation at least thirty days prior to the effective date of
termination. "Good Reason" shall mean the occurrence of one or
more of the following circumstances:
(1) the Company's assignment to the Executive of duties
inconsistent with the Executive's duties as defined in Section 1,
any change in the Executive's title as Chief Executive Officer as
defined in Section 1 or any material reduction in Executive's
duties or responsibilities, except as may have occurred in
connection with the termination of the Executive's employment for
Cause, Disability or as a result of the Executive's death or by
the Executive other than for Good Reason;
(2) the Executive's involuntary relocation to a new principal
work location not within reasonable commuting distance of his
former location;
(3) the failure of the Company to obtain the specific
assumption of this Agreement by any successor or assign of the
Company or any person, or entity acquiring substantially all of
the Company's assets; or
(4) any material breach by the Company of this Agreement.
In the event of a resignation for Good Reason, the Executive will
be entitled to receive either (i) continuation of his base salary
plus his target bonus for the year in which the termination has
occurred (assuming performance at the 100% level for all
applicable measures) and participation in the Company's standard
health insurance and 401(k) plans for 12 months after the date of
termination or (ii) a lump sum equal to 12 months base salary plus
his target bonus for the year in which the termination has
occurred (assuming performance at the 100% level for all
applicable measures). Thereafter, except for the obligations under
Sections 4(h) and (i), the Company shall have no further
obligation to the Executive under this Agreement."
c. Section 4(g) of the Agreement is hereby amended to read in its
entirety as follows:
"As used in this Section 4, a "Sale of the Company" shall mean a
merger or consolidation of the Company with any other corporation
or business entity, or a sale, lease or disposition by the Company
of all or substantially all of the Company's assets, other than a
merger, consolidation, sale, lease or disposition which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving or transferee entity or a direct or indirect
parent company of the surviving or transferee entity) at least 50%
of the total voting power represented by the voting securities of
the Company or such surviving or transferee entity or parent
company outstanding immediately after such merger, consolidation,
sale, lease or disposition."
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d. Section 8(b) is hereby amended to read in its entirety as follows:
"(b)Notice. All notices of termination and other communications
provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or mailed by
United States registered mail, return receipt requested, addressed
as follows:
If to the Company:
EasyLink Services Corporation
00 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Compensation Committee
If to the Executive:
Xxxxxx Xxxxxxxx
EasyLink Services Corporation
00 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
or to such other address as either party may designate by notice
to the other, which notice shall be deemed to have been given upon
receipt."
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 shall apply, mutatis
mutandis, to this Amendment.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first written above.
EXECUTIVE EASYLINK SERVICES CORPORATION
S/Xxxxxx Xxxxxxxx By: s/Xxxxxx Xxxxx
----------------- -----------------------------------
Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxx
Title: Chairman, Compensation Committee
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