EXHIBIT 10.21
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (the "Agreement"), effective as of the first of
September, 1998, between Prodigy Services Corporation, a Delaware corporation
(the "Company") and an indirect wholly-owned subsidiary of Prodigy
Communications Corporation (the "Parent"), with its principal place of business
at 00 Xx. Xxxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, and Xxxxx Xxxxxxx, residing at
000 X. 00xx Xxxxxx, Xxx. 0X, Xxx Xxxx, XX 00000, (the "Executive").
WHEREAS, the Company desires to employ the Executive as Chairman and Chief
Executive Officer of the Company, and the Executive desires to be employed in
that capacity;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. Term of Employment.
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The Company hereby agrees to employ the Executive, and the Executive hereby
accepts employment with the Company, upon the terms set forth in this Agreement,
for the period commencing on September 1, 1998 (the "Commencement Date"), and
ending on December 31, 2000 (the "Employment Period"), unless sooner terminated
in accordance with the provisions of Section 4.
2. Title; Capacity.
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The Executive shall serve as Chairman and Chief Executive Officer of the
Company. The Executive shall be based in White Plains, New York or such other
place within the greater New York metropolitan area as the Board of Directors of
the Company (the "Board") shall determine. The Executive shall report to and be
subject to the supervision of, and shall have such authority as is delegated to
Executive by the Board of Directors.
The Executive hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position, and such other duties and
responsibilities as the Board shall from time to time reasonably assign to the
Executive. The Executive shall devote Executive's entire business time,
attention and energies to the business and interests of the Company during the
Employment Period. The Executive shall abide by the rules, regulations,
instructions, personnel practices and policies of the Company and any changes
therein which may be adopted from time to time by the Company.
3. Compensation and Benefits.
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3.1 Salary. The Company shall pay the Executive, in accordance with its
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normal payroll practices, an annual base salary of $200,000. Such salary
shall be subject to increase (but not decrease) thereafter as determined by
the Board.
3.2 Performance Bonuses. The Executive shall participate in an annual
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bonus plan consistent with the plan in place for other senior executives.
For calendar year 1998, bonuses shall be paid based upon Executive's
duration of employment during the calendar year, without regard to the
commencement date of this Agreement. During each such year, 50% of such
bonus shall be contingent upon successful completion of personal goals as
mutually agreed between the Executive and the Board, and 50% of such bonus
shall be contingent upon the successful completion of corporate goals as
determined by the Company. Such performance bonus shall be determined and
paid within 45 days after the end of each such calendar year during the
Employment Period. Further, the Executive does not have to be employed by
the Company beyond the last day of the applicable year in order to be
eligible to receive a bonus payment.
3.3 Option Grant.
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(a) On September 29, 1997, the Parent granted the Executive a stock
option to purchase 625,000 shares of common stock of the Parent at an
exercise price of $2.00 per share. Such option shall vest and become
exercisable as follows: 100,000 options shall vest on the Commencement
Date, with the remaining 525,000 options vesting in 3 equal annual
installments, with the first vesting to occur on the first anniversary
of the grant date, provided, however, that 75,000 of the shares which
would otherwise vest on September 29, 2000 (the "Performance Options"),
shall vest upon the closing of an initial public offering by the Company
prior to August 1, 1999. The parties acknowledge that the exercise price
of all stock options referred to in this Section 3.3 has been reduced to
$1.00 per share.
(b) The Executive, if requested by the Parent and the managing
underwriter of the initial public offering of the Parent's securities
(the "IPO"), shall not sell publicly or otherwise transfer or dispose of
any securities of the Parent held by the Executive for a specified
period of time (not to exceed 270 days), following the effective date of
the registration statement for the IPO; provided that all then executive
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officers, directors and holders of 5% or more of the outstanding stock
of the Parent enter into similar agreements. The Executive acknowledges
that no representations have been made to him concerning the size,
occurrence, valuation or timing of any IPO.
3.4 Acceleration of Vesting Schedule. If there is a change of control of
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the Parent, pursuant to which one single person or entity has control of the
Parent (as control is understood under the Internal Revenue Code or
securities laws of the US), in 1998, the vesting schedule on all options
previously granted to the Executive will be accelerated so that a total of
50% of the Executive's options will be vested on the effective date of such
merger or acquisition. The vesting schedule shall thereafter remain the same
so that the remaining shares vest without giving effect to the shares which
vested on an accelerated basis.
3.5 Vacation. The Executive shall be entitled to four (4) weeks annual
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vacation, to be taken at times selected by the Executive and reasonably
acceptable to the Board. Unused vacation shall accrue from year to year only
to the extent permitted under the Company's vacation policies in effect from
time to time.
3.6 Fringe Benefits. The Executive shall be entitled to participate in
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all fringe benefit programs that the Company establishes and makes available
to its employees from time to time to the extent that Executive's position,
tenure, salary, age, health and other qualifications make him eligible to
participate.
3.7 Reimbursement of Expenses. The Company shall reimburse the Executive
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for all reasonable travel, entertainment and other expenses incurred or paid
by the Executive in connection with the performance of his duties hereunder,
upon presentation by the Executive of documentation, expense statements,
vouchers and/or such other supporting information as the Company may
request; provided, however, that the nature and amount of such expenses
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shall be subject to the Company's expense policies as in effect from time to
time.
3.8 Housing Allowance. During the term of the Employment Period, the
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Company shall reimburse the Executive for expenses, not to exceed $4,000 per
month on an after tax basis, incurred or paid by the Executive for housing
for him and his immediate family in the greater New York metropolitan area,
upon presentation by the Executive of documentation, receipts, and/or such
other supporting information as the Company may request.
3.9 Car Allowance. During the term of the Employment Period, the Company
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shall reimburse the Executive for expenses, not to exceed $1,050 per month
on an after tax basis, incurred or paid by the Executive for the costs
associated with business and personal use of a car.
3.10 Airfare. One time each month during the term of the Employment
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Period, the Company shall reimburse the Executive for the expense of a round
trip, business class airline ticket for the Executive's spouse between New
York and Mexico City.
4. Employment Termination. The employment of the Executive pursuant to this
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shall terminate upon the occurrence of any of the following:
4.1 At the election of the Company, for Cause (as hereinafter defined)
immediately upon written notice by the Company to the Executive. For
purposes of this Agreement, "Cause" shall mean (a) a good faith finding by
the Board, after notice to the Executive and an opportunity to be heard, of
the failure of the Executive to perform his reasonably assigned duties, or
the Executive's gross dishonesty, gross negligence or gross misconduct, or
(b) the conviction of the Executive of, or the entry of a plea of guilty or
nolo contendere by the Executive to, any felony;
4.2 Thirty days after the death or Disability (as hereinafter defined)
of the Executive. For purposes of this Agreement, "Disability" shall mean
the inability of the Executive, due to a physical or mental disability, for
a period of 90 days, whether or not consecutive, during any 360-day period
to perform, with or without reasonable accommodation, the services
contemplated under this Agreement. A determination of Disability shall be
made by a physician satisfactory to both the Executive and the Company;
provided that if the Executive and the Company do not agree on a physician,
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the Executive and the Company shall each select a physician and these two
together shall select a third physician, whose determination as to
Disability shall be binding on all parties; or
4.3 At the election of the Executive, upon written notice of
termination, for Good Reason (as hereinafter defined). For purposes of this
Agreement, "Good Reason" shall mean (i) any significant diminution in the
duties of the Executive under this Agreement or (ii) the Company's
requirement that the Executive relocate beyond the greater New York
metropolitan area, or (iii) if there is a change in control of the Parent so
that a single person or entity has control of the Parent (as control is
understood under the Internal Revenue Code or securities laws of the US).
4.4 At the election of the Executive, upon not less than two weeks'
prior written notice of termination, or at the election of the Company, upon
written notice of termination.
4.5 Upon the expiration of the Employment Contract.
5. Effect of Termination.
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5.1 Termination for Cause or at Election of the Executive. In the event
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the Executive's employment is terminated for Cause pursuant to Section 4.1,
or the Executive's employment is terminated at the election of the Executive
pursuant to Section 4.4, the Company shall, through the last day of his
actual employment by the Company, continue to pay to the Executive his base
salary as in effect on the date of notice of termination and continue to
provide to the Executive the fringe benefits available to him under Section
3.6 hereof, as of the last day of actual employment.
5.2 Termination for Death or Disability. If the Executive's employment
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is terminated due to death or Disability pursuant to Section 4.2, the
Company shall continue to pay to the estate of the Executive or to the
Executive, as the case may be, for a period of 90 days after termination of
employment due to death or Disability, the Executive's base salary as in
effect on the date of termination.
5.3 Termination by the Executive for Good Reason or at Election of the
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Company. If the Executive's employment is terminated by the Executive for
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Good Reason pursuant to Section 4.3 or at the election of the Company
pursuant to Section 4.4, the Company shall, during the Severance Period (as
hereinafter defined), continue to pay to the Executive his base salary as in
effect on the date of notice of termination and continue to provide to the
Executive the fringe benefits, including accrual of vacation pay, available
to him as of the date of notice of termination under Sections 3.5 and 3.6,
except during the Severance Period no options shall vest and no service
credit shall be granted which would have the
effect of extending the Severance Period in accordance with Company's
standard severance policy. Further, a pro rata share of the performance
bonus referenced in Section 3.2 shall be paid to the Executive covering the
period from the beginning of the calendar year up to the date of
termination. For purposes of this Agreement, the "Severance Period" shall
mean a period of 12 months after such termination, plus a severance payment
of one (1) week's base salary for each completed six (6) months of Company
service as of the date of notice of termination. If this paragraph conflicts
with any applicable Stock Option Agreement, this paragraph shall control.
However, if Xx. Xxxxxxx is offered employment in any capacity by any of the
companies controlled by, or affiliated with Grupo Carso, S.A. de C.V., Carso
Global Telecom, S.A. de C.V., Grupo Financiero Inbursa, S.A. de C.V.,
Telefonos de Mexico (TELMEX), or SBC Communications, or any of their
affiliates, Xx. Xxxxxxx agrees to forgo any compensation from the Company at
the time he begins employment with any of the above mentioned entities.
In addition, if Xx. Xxxxxxx is terminated for any reason, the Company
shall reimburse reasonable expenses incurred (including lease cancellation
penalties) for the relocation from his home in the New York City area to any
other city in the U.S. or Mexico up to a total of the lesser of his actual
expenses directly incurred or $40,000.00.
5.4 Termination at Expiration of Contract. If, prior to November 1,
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2000, the Company has not offered to renew the Employment Contract on terms
at least equal to those contained herein and for a term of not less than one
(1) year, the Company shall continue to pay the Executive his base salary in
effect on the date of termination for a period of 12 months after such
termination, plus a severance payment of one (1) week's base salary for each
completed six (6) months of Company service through the expiration of this
Agreement except as modified by Section 5.3. The Company shall also provide
to the Executive during the Severance Period, the fringe benefits, including
accrual of vacation pay, available to him under Sections 3.5 and 3.6, except
as modified by Section 5.3
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5.5 Survival. The provisions of Sections 5.2, 5.3 and 5.4 shall survive
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the expiration or termination of this Agreement under the circumstances
specified in those Sections for the periods specified in such Sections.
Sections 6 and 7 shall survive the termination of this Agreement.
6. Non-Compete.
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(a) During the Executive's active employment and for the Severance Period,
the Executive will not:
(i) be a partner, stockholder (other than as the holder of not more than
one percent (1%) of the total outstanding stock of), officer, employee,
consultant, director, joint venturer, investor or lender of or to America
Online, Inc., CompuServe Corporation, Microsoft Network, AT&T WorldNet,
Netcom On-Line Communications Services, Inc., EarthLink Network, Inc.,
MindSpring Enterprises, Inc., or any corporation or other entity acquiring
any of the foregoing; or involved in providing services that compete
directly with Prodigy; or
(ii) directly or indirectly recruit, solicit or induce, or attempt to
induce, any employee or employees of the Company to terminate their
employment with, or otherwise cease their relationship with the Company; or
(iii) directly or indirectly solicit, divert or take away, or attempt to
divert or to take away, the business or patronage of any of the clients,
customers or accounts, or prospective clients, customers or accounts, of the
Company, including but not limited to those clients, customers or accounts
which were contacted, solicited or served by the Executive while employed by
the Company.
(b) If any restriction set forth in this Section 6 is found by any court of
competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
(c) The restrictions contained in this Section 6 are necessary for the
protection of the business and goodwill of the Company and are considered by the
Executive to be reasonable for such purposes. The Executive agrees that any
breach of this Section 6 will cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, in addition to such other
remedies which may be available, the Company shall have the right to seek
specific performance and injunctive relief.
(d) Unless the context otherwise requires, all references in this Section 6
and in Section 7 below to the "Company" shall include all current or future
subsidiaries or affiliates of the Company.
7. Proprietary Information and Developments.
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7.1 Proprietary Information.
(a) The Executive agrees that all information and know-how related to
the activities of the Company, whether or not in writing, of a private,
secret or confidential nature concerning the Company's business or financial
affairs collectively, ("Proprietary Information") is and shall be the
exclusive property of the Company. By way of illustration, but not
limitation, Proprietary Information may include inventions, products,
processes, methods, techniques, formulas, compositions, compounds, projects,
developments, plans, research data, clinical data, financial data, personnel
data, computer programs, and customer and supplier lists. The Executive will
not disclose any Proprietary Information to others outside the Company or
use the same for any unauthorized purposes without written approval by an
officer of the Company, either during or after his employment, unless and
until such Proprietary information has become public knowledge without fault
by the Executive.
(b) The Executive agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program listings,
or other written, photographic, or other tangible material containing
Proprietary Information, whether created by the Executive or others, which
shall come into his custody or possession, shall be and are the exclusive
property of the Company to be used by the Executive only in the performance
of his duties for the Company.
(c) The Executive agrees that his obligation not to disclose or use
information, know-how and records of the types set forth in paragraphs (a)
and (b) above, also extends to such types of information, know-how, records
and tangible property of customers of the Company or suppliers to the
Company or other third parties who may have disclosed or entrusted the same
to the Company or to the Executive in the course of the Company's business.
7.2 Developments.
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(a) The Executive will make full and prompt disclosure to the Company of
all inventions, improvements, discoveries, methods, developments, software,
and works of authorship, related to the activities of the Company, whether
patentable or not, which are created, made, conceived or reduced to practice
by the Executive or under his direction or jointly with others during his
employment by the Company, whether or not during normal working hours or on
the premises of the Company (all of which are collectively referred to in
this Agreement as "Developments").
(b) The Executive agrees to assign and does hereby assign to the Company
(or any person or entity designated by the Company) all his right, title and
interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. The Executive also
acknowledges that all work fixed in a tangible medium of expression shall be
deemed a work made for hire under the US Copyright Act such that the work is
owned by the Company at the moment of creation.
(c) The Executive agrees to cooperate fully with the Company, both
during and after his employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights and patents (both in
the United States and foreign countries) relating to Developments. The
Executive shall sign all papers, including, without limitation, copyright
applications, patent applications, declarations, oaths, formal assignments,
assignment of priority rights, and powers of attorney, which the Company may
deem necessary or desirable in order to protect its rights and interests in
any Development.
7.3 Other Agreements. The Executive hereby represents that his performance
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of all the terms of this Agreement and as an employee of the Company does not
and will not breach the terms of any agreement with any previous employer or
other party to refrain from using or disclosing any trade secret, confidential
or proprietary information, knowledge or data acquired by him in confidence or
in trust prior to his employment with the Company or to refrain from competing,
directly or indirectly, with the business of such previous employer or any other
party.
8. Notices.
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All notices required or permitted under this Agreement shall be in writing
and shall be deemed effective upon personal delivery or upon sending, by
registered or certified mail, postage prepaid, addressed to the other party at
the address shown above, or at such other address or addresses as either party
shall designate to the other in accordance with this Section 8.
9. Pronouns.
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Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
forms of nouns and pronouns shall include the plural, and vice versa.
10. Entire Agreement.
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This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or oral,
relating to the subject matter of this Agreement, except that the Agreement
Regarding Confidential Information, the Prodigy Business Conduct Guidelines, and
other documents executed on the commencement of employment, shall remain in full
force and effect.
11. Amendment.
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This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Executive.
12. Governing Law.
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This Agreement shall be construed, interpreted and enforced in accordance
with the laws of the State of New York in the United States, without reference
to conflict of laws principles.
13. Successors and Assigns.
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This Agreement shall be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any corporation
with which or into which the Company may be merged or which may succeed to its
assets or business; provided, however, that the obligations of the Executive are
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personal and shall not be assigned by him.
14. Miscellaneous.
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14.1 No delay or omission by either the Company or the Executive in
exercising any right under this Agreement shall operate as a waiver of that
or any other right. A waiver or consent given by either the Company or the
Executive on any one occasion shall be effective only in that instance and
shall not be construed as a bar or waiver of any right on any other
occasion.
14.2 The captions of the sections of this Agreement are for convenience
of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
14.3 In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year set forth above.
PRODIGY COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
EXECUTIVE
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
