EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”) is entered into on November 14, 2008
(the “Effective Date”) between, EasyLink Services
International Corporation (the “Company”) and Chris A.
Parker (“Parker”).
In consideration of the mutual
covenants and conditions set forth herein, the parties hereby agree
as follows:
1. Employment.
The Company
hereby employs Parker in the capacity of Executive Vice President
of Production Operations. Parker 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. Parker 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 year, commencing on the
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. Parker’s 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 Parker’s duties hereunder, the Company shall
pay Parker 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. Parker 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 Parker’s
employment subsequent to Fiscal 2009. If the Company fails to
negotiate a new Cash Incentive Plan for any year after Fiscal 2009,
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
15 th 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 Parker the benefits as described on Exhibit B
attached hereto.
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3.4 Reimbursement of
Expenses. Parker 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 Parker 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 Parker for such actual and reasonable expenses no later
than the last day of the calendar year following the calendar year
in which Parker 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
Parker’s employment is terminated under Sections 5.1(b),
(d) or (e) of this Agreement, any of Parker’s
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
(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. Parker’s employment
hereunder will terminate upon the occurrence of any of the
following events:
(a) Death;
(b) Disability: If
Parker 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 Parker
or his personal representative setting forth specifically the
nature of the disability and the resulting performance
failures
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and Parker’s failure to
cure the cited performance failures within ten days of receipt of
such notice, the Company may discharge Parker;
(c) Cause: As used in
this Agreement, “Cause” shall mean:
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(i)
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Parker’s 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 Parker for Cause, the Board shall give a
written statement of findings to Parker setting forth specifically
the grounds on which Cause is based, and Parker shall have a period
of ten days thereafter to respond in writing to the Board’s
findings; or
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(ii)
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Parker’s 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 Parker
specifying the nature of the misconduct or performance deficiency
and giving Parker 20 days to cure such deficiency. For
purposes of this subsection (ii), no act or failure to act on
Parker’s part shall be considered “willful” if
done, or omitted to be done, by Parker in good faith and with
reasonable belief that Parker’s 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;
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(d) Without Cause: The
Board may terminate Parker by issuing at least 30 days’
advance written notice, subject to the severance provisions set
forth below;
(e) By Parker With
Cause: Parker 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 Parker provided, however,
that Parker 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, Parker then must terminate his employment within
12 months of the initial existence of the condition;
or
(f) By Parker Without
Cause: Parker 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 Parker’s prior written consent, that
results in:
(1) A material
diminution in Parker’s author
