Exhibit 10.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “ Agreement" )
is made as of the 1st day of January, 2004 (the “
Effective Date" ) by and between Acceris Communications
Inc., a Florida corporation (the “ Company ”),
and James Ducay (“ Executive ”).
The
Executive is skilled in business and financial matters and
possesses knowledge of the business, products and operations of the
Company. The parties hereto believe that it is in their respective
interests to enter into an employment agreement whereby, for the
consideration specified herein, Executive shall provide the
services specified herein. Certain definitions are set forth in
Section 7 of this Agreement.
The
parties hereto agree as follows:
Section 1. Employment .
(a)
Employment Period . The Company agrees to employ Executive
and Executive accepts such employment for the period (the
“Employment Period” ) beginning as of the
Effective Date and ending upon (a) the first anniversary of
the Effective Date or (b) such earlier date upon which the
employment of the Executive shall terminate in accordance with
Section 2 herein (the date of termination being
hereinafter called the “ Termination Date”) .
The Employment Period may be extended by written agreement of the
parties hereto. Any employment of Executive by the Company
following the expiration of the Employment Period shall be
“at will” and may be terminated by the Company at any
time without any liability other than the payment of any base
salary and earned bonus through the effective date of
termination.
(b)
Position and Duties .
(i) During
the Employment Period, Executive shall serve as the Executive Vice
President and Chief Operating Officer of the Company and the
Executive shall report to the President and/or Chief Executive
Officer of the Company. Executive shall perform all duties and
shall have all powers which are commonly incident to his office as
well as all powers that are delegated to Executive by the President
and/or chief Executive Officer.
(ii) Executive
shall devote his best efforts and his full business time and
attention to the business and affairs of the Company, except for
permitted vacation periods in accordance with the Company’s
policy, periods of illness or other incapacity, and reasonable time
spent with respect to civic and charitable activities, provided
that none of such activities shall materially interfere with
Executive’s duties to the Company or its
Subsidiaries.
(c)
Salary. Bonus and Benefits .
(i) During
the Employment Period, the Company will pay Executive a base salary
at the rate of $275,000 per annum (the “ Annual Base
Salary”) . The Annual Base Salary shall be paid in such
installments as is the policy of the Company with respect to
executive officers of the Company.
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(ii) Commencing
with the Effective Date, Executive shall be eligible for a
discretionary annual bonus of up to one hundred percent (100%) of
Executive’s Annual Base Salary (the “Bonus”). The
amount of any Bonus to be awarded shall be determined pursuant to
the Acceris Management System, based on performance criteria
established at the beginning of each fiscal year, and the timing of
such award and the payment of any such Bonus shall be consistent
with the practice of the Company.
(iii) Executive
shall be entitled to participate in all employee stock option,
pension and welfare benefit plans, programs and practices
maintained by the Company for its employees generally in accordance
with the terms of such plans, programs and practices as in effect
from time to time, and in any other insurance, pension, retirement
or welfare benefit plans, programs and practices which the Company
generally provides to its executives from time to time.
(d)
Expenses . The Company shall pay, or reimburse the Executive
(at the Company’s option), in accordance with policies
established by the Company, for all reasonable and necessary
expenses and other disbursements incurred by the Executive for or
on behalf of the Company in the performance of his duties
hereunder, including, without limitation, travel on behalf of or in
connection with his services for the Company in a manner customary
for the Company’s senior executives, including food and
lodging expenses while the Executive is away from home performing
services for the Company.
(e)
Workplace and Work Schedule . Executive’s workplace
shall be the Company’s office in Pittsburgh, Pennsylvania.
Executive shall be entitled to such holidays as are established by
the policies of the Company. Executive shall be entitled to four
(4) weeks of vacation per year, which may be taken in various
periods, subject to the Company’s needs.
Section 2. Termination Of Employment
.
(a)
Death or Disability . The Company may terminate the
Executive’s employment hereunder due to the Executive’s
death or Disability. If the Executive dies during the Employment
Period, the Termination Date shall be deemed to be the date of the
Executive’s death.
(b)
Cause . The Company may terminate the employment of
Executive hereunder at any time for Cause (such termination being
referred to herein as a “ Termination for Cause”
) by giving the Executive written notice of such termination, with
such termination to take effect as of the date of such
notice.
(c)
Without Cause . The Company may terminate the employment of
the Executive at any time during the Employment Period without
Cause by giving the Executive written notice of such termination,
with such termination to take effect as of the date of such
notice.
(d)
Good Reason , Executive may terminate his employment
hereunder for Good Reason by providing written notice to the
Company within 45 days of his knowledge of the event constituting
Good Reason. Notwithstanding the foregoing provisions to the
contrary, in no event shall the Executive terminate his employment
hereunder for Good Reason without providing the Company with at
least fifteen (15) days’ prior written Notice of
Termination given by the Executive to the Company and an
opportunity for the Company to cure within that fifteen
(15) day period the Good Reason which the Executive believes
provides him with grounds to terminate his employment.
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(e)
Notice of Termination . Any termination pursuant to
this Section 2 shall be communicated to Executive or
the President and/or Chief Executive Officer, as applicable, by
Notice of Termination.
Section 3. Effect Of Termination Of Employment
.
(a)
Death or Disability . Upon the termination of
Executive’s employment hereunder due to death or Disability
pursuant to Section 2(a) , neither Executive nor his
beneficiary or estate shall have any further rights or claims
against the Company under this Agreement, except the right to
receive (i) the unpaid portion, if any, of the Annual Base
Salary provided for in Section 1 , computed on a pro
rata basis to the Termination Date (based on the actual number of
days elapsed over a year of 365 or 366 days, as applicable),
(ii) the unpaid portion, if any, of the Bonus and
(iii) reimbursement for any expenses for which Executive shall
not have been reimbursed as provided for in Section 1
(such amounts being collectively referred to as “ Accrued
Compensation”) .
(b)
Cause . Upon a termination of Executive’s employment
hereunder by the Company for Cause pursuant to
Section 2(b) , neither Executive nor his beneficiary or
estate shall have any further rights or claims against the Company
under this Agreement, except the right to receive (i) the
unpaid portion, if any, of the Annual Base Salary provided for in
Section 1 , computed on a pro rata basis to the
Termination Date (based on the actual number of days elapsed over a
year of 365 or 366 days, as applicable) and (ii) reimbursement
for any expenses for which the Executive shall not have been
reimbursed as provided for in Section 1 .
(c)
Without Cause . Upon a termination of Executive’s
employment hereunder by the Company without Cause pursuant to
Section 2(c) , neither Executive nor his beneficiary or
estate shall have any further rights or claims against the Company
under this Agreement, except the right to receive:
(i) any
Accrued Compensation;
(ii) off
payroll, an amount equal to the amount of the Annual Base Salary,
payable in accordance with Section 1 ( c)(i) ,
Executive would have received for the period commencing on the
Termination Date and ending on the first anniversary of the
Termination Date; and
(iii) provided
that Executive has met, as of the Termination Date, the performance
criteria established with respect to the Bonus for the fiscal year
in which the Termination Date occurs, the pro rata portion of the
Bonus for such fiscal year (based on the actual number of days
elapsed from the beginning of the fiscal year to the Termination
Date), the timing of the payment of any such Bonus to be consistent
with the past practice of the Company.
(d) Upon
a termination of the Executive’s employment hereunder by the
Executive for Good Reason pursuant to Section 2(d) ,
neither the Executive nor his beneficiary or estate shall have any
further rights or claims against the Company under this Agreement,
except the right to receive:
(i) any
Accrued Compensation; and
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(ii) off
payroll, an amount equal to the amount of the Annual Base Salary,
payable in accordance with Section 1(c)(i) , Executive
would have received for the period commencing on the Termination
Date and ending on the earlier of (x) the first anniversary of
the Termination Date and (y) the first anniversary of the
Effective Date.
(e)
Release . Executive acknowledges and agrees that the
payments provided for in Sections 3(c)(ii) and 3(d)(ii
) constitute liquidated damages for any claim of breach of contract
under this Agreement as it relates to termination of his employment
during the Employment Period without Cause pursuant to
Section 2(c ) or with Good Reason pursuant to
Section 2(d) . Notwithstanding the foregoing, if
Executive is entitled to the payments set forth in
Section 3(c)(ii ) or Section 3(d)(ii ) of
this Agreement, Executive shall execute and agree to be bound by an
agreement, in form and substance satisfactory to the Company (the
“Release”), relating to the waiver and general release
of any and all claims arising out of or relating to
Executive’s employment and termination of employment, and the
Company shall have no obligation to make the payments contemplated
under Section 3(c)(ii ) or Section 3(d)(ii) , as
the case may be if Executive fails to execute such Release or seeks
to revoke such Release. In addition, if Executive should violate or
threaten to violate the terms of Section 4 of this
Agreement, the continuing obligations of the Company to make the
payments contemplated under Section 3(c)(ii ) or
Section 3(d)(ii) , as the case may be, shall
immediately terminate.
(f)
Mitigation . Notwithstanding the foregoing and subject to
the limitations on competition hereunder, the amount of any payment
by the Company provided for in Section 3(c)(ii ) or
Section 3(d)(ii) , as the case may be, shall be reduced
by the amount of any compensation earned by the Executive from a
competitor of the Company or any Subsidiary during the period such
payment is to be made by the
