Filed by Bowne Pure Compliance



 




EXHIBIT 10.3


CONFIDENTIAL TREATMENT REQUESTED
BY 

EASYLINK SERVICES INTERNATIONAL CORPORATION 

UNDER
RULE 24b-2 

  

*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.


 





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EMPLOYMENT AGREEMENT


This Employment
Agreement (the “Agreement”) is entered into on December 1,
2007 (the “Effective Date”) between, EasyLink Services
International Corporation (the “Company”) and Terri Deuel
(“Deuel”).


In consideration of
the mutual covenants and conditions set forth herein, the parties hereby agree
as follows:


1. Employment. The Company hereby employs Deuel in
the capacity of Vice President of Product Development and Support. Deuel
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 her by the
Company’s Chief Executive Officer. Deuel will perform her 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 Effective Date and each
anniversary thereafter, the Employment Period shall automatically extend for an
additional one year upon each such anniversary. Deuel’s employment will
be on a full-time basis requiring the devotion of such amount of her 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 Deuel’s duties hereunder, the Company shall
pay Deuel (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.


3.2 Annual Cash
Incentive. Deuel 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 Deuel’s
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.





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3.3 Benefits.
The Company shall provide to Deuel the benefits as described on
Exhibit B attached hereto.


3.4
Reimbursement of Expenses. Deuel 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 Deuel in connection with and
reasonably related to the furtherance of the Company’s Business, per
Company travel guidelines in effect from time to time.


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(b) of this Agreement or if Deuel’s
employment is terminated under Sections 5. 1(b), (d) or (e) of
this Agreement, any of Deuel’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.


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5. Termination.


5.1 Termination
Events. Deuel’s employment hereunder will terminate upon the
occurrence of any of the following events:


(a) Death;


(b) Disability: If Deuel is unable perform the duties
assigned to her 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 Deuel
or her personal representative setting forth specifically the nature of the
disability and the resulting performance failures and Deuel’s failure to
cure the cited performance failures within ten days of receipt of such notice,
the Company may discharge Deuel;


(c) Cause: As used in this Agreement, “Cause”
shall mean:



	 	(i)	 	
Deuel’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 Deuel for
Cause, the Board shall give a written statement of findings to Deuel setting
forth specifically the grounds on which Cause is based, and Deuel shall have a
period of ten days thereafter to respond in writing to the Board’s
findings;








	 	(ii)	 	
Deuel’s willful and continued failure to
substantially perform her 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 Deuel specifying the nature of
the misconduct or performance deficiency and giving Deuel 20 days to cure
such deficiency. For purposes of this subsection (ii), no act or failure to act
on Deuel’s part shall be considered “willful” if done, or
omitted to be done, by Deuel in good faith and with reasonable belief that
Deuel’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.







(d) Without Cause: The Board may terminate Deuel by
issuing at least 30 days’ advance written notice, subject to the
severance provisions set forth below.


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(e) By Deuel With Cause: Deuel may terminate her
employment due to either (i) a 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 20 days following its receipt of
written notice thereof from Deuel; or


(f) By Deuel Without Cause: Deuel may terminate her
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 Deuel’s prior written consent, that results
in:


(1) A change in Deuel’s reporting responsibilities,
titles, job responsibilities or offices that results in a material diminution
of her status, control or authority; or


(2) The assignment to Deuel of any positions, duties or
responsibilities that are materially inconsistent with Deuel’s positions,
duties and responsibilities or status with the Company immediately prior to the
change; or


(3) A requirement by the Company that Deuel be based or
perform her duties anywhere other than the principal executive offices of the
Company, as located (i) at Deuel’s office location on the date of
this Agreement or (ii) within 25 miles of such current location; or


(4) A failure by the Company to provide for Deuel’s
participation in any newly-adopted benefits or plans at a level or to an extent
commensurate with that of other top executives of the Company.


5.2 Effects of
Termination.


(a) Upon termination of Deuel’s employment hereunder
for any reason, the Company will promptly pay Deuel all compensation owed to
Deuel and unpaid through the date of termination (including, without
limitation, salary and employee expense reimbursements).


(b) In addition, if Deuel’s employment is terminated
under Sections 5.1 (b), (d) or (e), the Company shall also pay Deuel
a severance amount equal to 12 months of the 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 amount shall be paid in
accordance with the Company’s then-existing standard payroll policies
(including payroll deductions) over the 12-month period following such
termination. 


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(c) The Company shall have the right to offset against any
damages resulting from a breach by Deuel of Section 5.3 or Section 6
of this Agreement.


5.3 Restrictive
Covenants. Upon termination of Deuel’s employment hereunder for any
reason, Deuel agrees that for the one-year period following the termination of
employment, Deuel will not:


(a) directly or indirectly, within a ten-mile radius of
Deuel’s office at the Company, whether for her 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 she
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.


(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 Deuel dealt at any time
during the two-year period preceding her 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.


Deuel 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
Deuel 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. Deuel agrees that the existence of any claim or cause of action of
Deuel against the Company, whether predicated upon this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of these
covenants. 


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6. Confidentiality. During the term of this
Agreement and for 36 months after Deuel’s termination of employment
with the Company, Deuel will continue to be bound by the terms of that certain
Confidentiality Agreement entered into between Deuel and the Company on or
about December 1, 2007.


7. General
Provisions.


7.1 Assignment.
Deuel may not assign or delegate any of her 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.


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.


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. 


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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:


EasyLink Services International
Corporation

6025 The Corners Parkway

Suite 100

Norcross,
Georgia 30092


and, in the case of Deuel, to:


2208 Virginia Place

Atlanta,
Georgia 30305


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.


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 her 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.


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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the 11th
day of December, 2007, effective as of December 1, 2007.


/s/ Terri Deuel   
                
                
         

Terri Deuel


EasyLink Services International Corporation


By: /s/ Glen E. Shipley  
                
          

Name: Glen E. Shipley

Title: CFO




 


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EXHIBIT A


2008 Compensation Plan


Ms. Terri Deuel, Vice
President of Product Development and Support

EasyLink Services
International Corporation (the “Company”)


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 modify 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 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 $[XXXXX] — half of the
executive’s Company Bonus will be earned if the Company achieves a
minimum of $[XXXXX] 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 $[XXXXX] — the other
half of the executive’s Company based performance bonus will be earned if
the Company achieves a minimum of $[XXXXX] 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.










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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
this Agreement, you will receive a one time grant of 20,000 restricted shares
of the Company’s class A common stock to vest monthly over 3 years.
The restricted stock grant shall be granted pursuant to the terms of, and
evidenced by, a written agreement to be entered into between you and the
Company.


 





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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 will contribute 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 will contribute 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.





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