EXHIBIT 10.27
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (the "Agreement"), effective as of the first of June
1998, between Prodigy Services Corporation, a Delaware corporation (the
"Company") and an indirect wholly-owned subsidiary of Prodigy, Inc. (the
"Parent"), with its principal place of business at 00 Xx. Xxxxxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000, and Xxxxxx X. Pooth, residing at RRl Xxx 00, Xxxxxxxxx,
XX 00000, (the "Executive").
WHEREAS, the Company desires to employ the Executive as Senior Vice
President 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 June 1, 1998 (the "Commencement Date"), and ending
on May 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 Senior Vice President 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 President and Chief Executive Officer of the Company or Parent (the
"President"), or such other senior executive as the President shall designate.
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 President 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 $ 175,000 commencing on
the Commencement Date. Such salary shall be subject to increase (but not
decrease) thereafter as determined by the Board. Such salary was increased
to $150,000 annually on August 1, 1998.
3.2 Performance Bonuses. The Executive shall be eligible to receive up to
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30% of his annual base salary as a performance bonus during each calendar
year of the Employment Period with any partial calendar year of employment
subject to pro rata adjustment. For calendar year 1998, bonuses shall be
paid based upon the 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 the successful
completion of personal goals as mutually agreed between the Executive and
the President, 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 July 12, 1996, the Parent granted the Executive a stock option
to purchase 20,000 shares of common stock of the Parent at an exercise
price of $3.00 per share, vesting in four (4) equal annual installments,
with the first vesting to occur on the first anniversary of the grant date.
On December 5, 1996, the Parent granted the Executive a stock option to
purchase 9,000 shares of common stock of the Parent at an exercise price of
$3.00 per share, vesting in three (3) equal annual installments, with the
first vesting to occur on July 12, 1997. On August 1, 1997, the Parent
granted the Executive a stock option to purchase 71,000 shares of common
stock of the Parent at an exercise price of $3.00 per share, vesting in
five (5) annual installments, with the first vesting to occur on July 12,
1997. On January 26, 1998, the Parent granted the Executive a stock option
to purchase 275,000 shares of common stock of the Parent at an exercise
price of $2.00 per share, vesting in three (3) equal annual installments,
with the first vesting to occur on the first anniversary of the grant date.
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 President. 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.
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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 shall be subject to the Company's expense policies as in effect
from time to time.
4. Employment Termination.
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The employment of the Executive pursuant to this Agreement 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,
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 (2) 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
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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 is
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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 the
purposes of this Section 5.3, the performance bonus referenced in Section
3.2 shall be calculated as 30% the Executive's annual base salary. For
purposes of this Agreement, the "Severance Period" shall mean a period of
nine (9) 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.
5.4 Termination at Expiration of Contract. If, prior to April 1, 2000, the
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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 nine (9) 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. 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.
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
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(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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a. Proprietary Information.
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(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
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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
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performance 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 law 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 SERVICES CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Title: Chairman and CEO
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EXECUTIVE
/s/ Carena M, Pooth
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