Exhibit 10.23


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”)
is made as of the 1st day of July 2002 by and between WorldxChange
Corp., a Delaware corporation (the “Company”), and James Ducay (“Executive”).


 


R E C I T A L S:


 


WHEREAS, pursuant to an Asset Purchase Agreement dated
as of March 25, 2002 (the “Purchase Agreement”), the Company will purchase
certain assets (the “Assets”) of RSL COM U.S.A., Inc. (“RSL”);


 


WHEREAS, following the consummation of the purchase of
the Assets, the Company’s current sales and marketing functions will be
transferred to an Affiliate and the sales and marketing functions of RSL will
be transferred to another Affiliate (together, the “Sales Affiliates”);


 


WHEREAS, following the transfer of sales and marketing
functions referred to above, the Company will provide network, billing and
operation support services to each of the Sales Affiliates and network services
to I-Link Communications, Inc. (“I-Link”);


 


WHEREAS, in connection with the proposed purchase of
the Assets, Executive will perform certain network integration and operational
tasks for the Company while still an employee of RSL pursuant to an Agreement
among the Company, RSL and Executive;


 


WHEREAS, 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 6 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
date of the closing under the Purchase Agreement (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 bonus through the
effective date of termination.


 


(b)                                 Position
and Duties.


 


(i)                                     During
the Employment Period, Executive shall report to the Board and shall (A)
continue the integration of certain of the Assets into the Company’s network,
(B) complete such additional network integration as the Board may determine,
(C) help Counsel Springwell Communications LLC, the indirect parent company of
the Company (the “LLC”), to determine which


 

















 


elements of this integrated network (the “Integrated Network”) should
be managed centrally and which should be a part of, respectively, I-Link, the
Sales Affiliates and any other companies that the LLC purchases during the term
of this Agreement (collectively, the “Customer-Facing Companies”) , (D) manage
the Integrated Network to efficiently and appropriately provide network
services for the Customer-Facing Companies and (E) perform such other duties as
the Board may delegate or assign to Executive.


 


(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.


 


(iii)                               In addition to
performing the duties set forth above, Executive agrees to serve during the
Employment Period as a member of the Management Executive Committee (the “Management
Executive Committee”) that has been established pursuant to the resolutions
adopted by the Board of Directors of the LLC, copies of which are attached
hereto as Exhibit A.


 


(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.


 


(ii)                                  Executive
shall be eligible for a discretionary bonus with respect to the 12-month period
following the Effective Date of up to one hundred percent (100%) of Executive’s
Annual Base Salary (the “Bonus”). 
The amount of the Bonus to be awarded shall be determined by the Board,
based on metrics  to be set forth in a
separate letter agreement prior to the Effective Date (the “Performance
Criteria”).  At least fifty percent
(50%) of the Performance Criteria will consist of milestones to be achieved by
Executive related to network, billing and operation support services, and the
balance will consist of financial results of the Company and other Performance
Criteria to be established by the Board. 
If all the Performance Criteria are met, the Bonus will be in an amount
equal to one hundred percent (100%) of Executive’s Annual Base Salary.  The Bonus shall be paid within thirty (30)
days following the expiration of the Employment Period.


 


(iii)                               Executive shall be
entitled to participate in all employee 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 his home in Lake Forest, Illinois performing services
for the Company.


 


(e)                                  Workplace
and Work Schedule.  Executive’s
workplace shall be the Company’s offices in San Diego, California and
Pittsburgh, Pennsylvania.  Executive
shall also, as requested, attend


 


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meetings of the Management Executive Committee and other meetings with
the management of the LLC at the offices of the LLC in Stamford,
Connecticut.  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.


 


(e)                                  Notice
of Termination.  Any termination
pursuant to this Section 2 shall be communicated to Executive or
the Board, 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


 


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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 Effective Date, and


 


(iii)                               provided
that Executive has met, as of the Termination Date, the Performance Criteria,
the pro rata portion of the Bonus (based on the actual number of days elapsed
from the Effective Date to the Termination Date).


 


(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;


 


(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 Effective Date; and


 


(iii)                               provided
that Executive has met, as of the Termination Date, the Performance Criteria,
the pro rata portion of the Bonus (based on the actual number of days elapsed
from the Effective Date to the Termination Date).


 


(e)                                  Release.  Executive acknowledges and agrees that the
payments provided for in Sections 3(c)(ii) and3(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 this Employment Agreement, 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.


 


Section 4.                                          Covenants.


 


(a)                                  Executive
agrees that at all times, both during and for two years after Executive’s
employment by the Company, Executive will hold in a fiduciary capacity for the
benefit of the Company and not use or disclose to any third party any trade
secret, or other information, knowledge or data not generally known to the
public which Executive may have learned, discovered, developed, conceived,
originated, prepared or received during or as a result of Executive’s
employment by the Company or any Subsidiary or Affiliate (or any entity
acquired by the Company or any Subsidiary or Affiliate or any entity from which
the Company or any Subsidiary or Affiliate acquired assets) with respect to the
operations, businesses, affairs, products, services, technology, intellectual
properties, Agents, customers, clients,


 


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pricing of products or services, policies, procedures, accounts,
personnel, concepts, format, style, techniques or software of the Company or
any Subsidiary or Affiliate (“Proprietary Information”).  Executive agrees that Company’s Proprietary
Information includes, without limitation, the business or other needs,
requirements, preferences or other information relating to Agents and customers
of the Company or any Subsidiary or Affiliate, acquisition targets of the
Company or any Subsidiary or Affiliate and all information or data collected by
the Company with reference thereto. 
Executive agrees to comply with any and all procedures which the Company
may adopt from time to time to preserve the confidentiality of any trade secret
or other non-public proprietary, information, knowledge or data; that the
absence of any legend indicating the confidentiality of any materials will not
give rise to an inference that the contents thereof or information derived
therefrom are not confidential and that, immediately following the termination
of Executive’s employment by the Company, Executive will return to Company all
materials, except for Executive’s personal items, provided to Executive by the
Company during the term hereof, all works created by Executive or others during
the term of Executive’s employment hereunder and all copies thereof.  Notwithstanding the foregoing, the
limitations imposed on Executive pursuant to this Section 4(a)
shall not apply to Executive’s (i) compliance with legal process or subpoena or
(ii) statements in response to inquiry from a court or regulatory body;
provided, that Executive gives the Company reasonable prior written notice of
such process, subpoena or request.


 


(b)                                 Executive
shall not, at any time prior to the Termination Date or during the period
thereafter ending on the first anniversary of the Termination Date (such period
being referred to herein as the “Stipulated Period”), intentionally
disrupt or attempt to disrupt the relationship, contractual or otherwise,
between the Company or any of its Subsidiaries or Affiliates and any third
party, including, but not limited to, any Agent, customer, supplier or employee
of any of them.  Executive shall be
deemed to have violated the provisions of the foregoing sentence if he shall
solicit or directly or indirectly for himself or any third party hire or
otherwise retain the services of any individual who shall have been an Agent or
employee of the Company or any Subsidiary or Affiliate within the immediately
preceding two-year period; provided, however, that notwithstanding the
foregoing, the parties agree that Executive shall not be deemed to have
violated the provisions of this Section 4(b) in the event that any
Person of which Executive is an employee, agent or consultant (the “New
Employer”) disrupts or attempts to disrupt the relationship between the
Company or any of its Subsidiaries or Affiliates and any Agent, employee,
customer or supplier of any of them, so long as Executive has neither
identified such Agent, employee, customer or supplier to the New Employer nor
directed that such action be taken.


 


(c)                                  Executive
hereby assigns to the Company the entire right, title and interest of Executive
in and to all work, inventions, ideas, disclosures and improvements, whether or
not patented or patentable, made, conceived or reduced to practice by
Executive, solely or with others, in whole or in part, at any time during the
Employment Period, which in any way relate to the Business.  During the Employment Period, Executive
shall communicate promptly and disclose to the Company all information, details
and data pertaining to such work, inventions, ideas, disclosures and improvements.  Executive shall, at any time (including any
time after the expiration of the Employment Period), execute and deliver to the
Company such formal transfers and assignments and such other papers and
documents as may be required of Executive to perfect the Company’s rights
hereunder and to permit the Company to file and prosecute patent
applications.  Any work, invention,
idea, disclosure or improvement by Executive relating to the Business within
six (6) months following the expiration of the Employment Period shall be
deemed to fall within the provisions of this Section 4(c) unless
proved by Executive to have been first conceived and made following such
expiration.  Nothing in this Section 4(c)
shall abrogate or reduce any other restrictions on Executive under applicable
law.


 


(d)                                 Because
the breach or attempted or threatened breach of this Section 4 may
result in immediate and irreparable injury to the Company for which the Company
may not have an adequate remedy at law, the Company shall be entitled, in addition
to all other remedies, to a decree of specific


 


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performance thereof and to a temporary and permanent injunction
enjoining such breach, without posting bond or furnishing similar
security.  The parties’ obligations
under this Section 4 shall survive any termination of Executive’s
employment or this Agreement.


 


Section 5.                                          Tax
Withholding.


 


The Company may withhold
from any compensation or severance payable under this Agreement all federal,
state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.


 


Section 6.                                          Definitions.


 


“Affiliate” of the Company means (i) any other
Person controlling, controlled by, or under common control with the Company,
where “control” means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, by contract, or otherwise, and (ii) if such Person is a
partnership, any partner thereof.


 


“Agent” means any Person which has received or
is entitled to receive a commission from the Company related to the sale or
marketing of the Company’s products or services.


 


“Board” means the Board of Directors of the
Company.


 


“Business” means
the offering of data and long distance voices services, including frame relay
and “dial around” voice communications. 
“Business” also means any other business activity which is the Company’s
principal business activity at the time Section 4 is invoked.


 


“Cause” means (i) Executive’s conviction of, or
plea of guilty or nolo  contendere to, a crime constituting a
felony, (ii) gross misconduct by the Executive that is materially inconsistent
with the terms hereof, (iii) material failure by the Executive to perform his duties,
which nonperformance continues after written notice thereof and a fifteen (15)
day chance to cure, (iv) the Executive’s material breach of this Agreement,
which, if curable, shall not have been cured within fifteen (15) days after
written notice thereof from the Company, (v) habitual drug or alcohol use which
impairs the ability of Executive to perform his duties hereunder, or (vi)
Executive’s engaging in fraud, embezzlement or any other illegal conduct with
respect to the Company which acts are harmful to, either financially, or to the
business reputation of, the Company or (vii) breach of the fiduciary duty owed
by Executive to the Company or of any of its Subsidiaries or Affiliates, which
breach, if curable, shall not have been cured within fifteen (15) days after
written notice thereof from the Company.


 


“Disability” means a physical or mental
infirmity which impairs Executive’s ability to perform substantially his duties
for a total period exceeding six (6) months during the Employment Period or for
a period of four (4) consecutive months. 
Disability shall be determined by a physician acceptable to both the
Company and Executive, or, if the Company and Executive cannot agree upon a
physician within 15 days after the Company claims that Executive is suffering
from a Disability, by a physician selected by two physicians, one designated by
each of the Company and Executive. 
Executive’s failure to submit to any physical examination by any such
physician after such physician has given reasonable notice of time and place of
such examination shall be conclusive evidence of Executive’s inability to
perform his duties hereunder.


 


“Good Reason” means, during the Employment
Period and without Executive’s consent:


 


(i)                                     a
material diminution of Executive’s title, reporting structure, position or
responsibilities or


 


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(ii)                                  a
reduction in, or failure to pay, Executive’s Annual Base Salary or any
reduction in the benefits being 
required to be provided herein or any other material breach of this
Agreement.


 


“Notice of Termination”
means a written notice which indicates the Termination Date, the specific
termination provision in this Agreement relied upon, and the facts and
circumstances, if any, claimed to provide a basis for such termination.


 


“Person” means an individual, a partnership, a
limited liability company, a corporation, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.


 


“Subsidiary” means any corporation or other
entity of which the securities having a majority of the ordinary voting power
in electing the board of directors are, at the time as of which any
determination is being made, owned by the Company either directly or through
one or more Subsidiaries.


 


Section 7.                                          Notices.


 


Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:


If to Company:


 


WorldxChange Corp.


9775 Business Park Avenue


San Diego, California 92131


Attn:  Chairman
of the Board


 


If to Executive:


 


951 Oak Knoll


Lake Forest, Illinois
60045


 


or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party.  Any notice under this Agreement
will be deemed to have been given when so delivered or sent or, if mailed, five
days after deposit in the U.S. mail.


 


Section 9.                                          General
Provisions.


 


(a)                                  Severability.  Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.


 


(b)                                 Complete
Agreement.  This Agreement, those
documents expressly referred to herein and other documents of even date
herewith embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.


 


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(c)                                  Counterparts.  This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.


 


(d)                                 Successors
and Assigns.  Except as otherwise
provided herein, this Agreement shall bind and inure to the benefit of and be
enforceable by Executive, the Company and their respective successors and
assigns; provided that the rights and obligations of Executive under
this Agreement shall not be assignable.


 


(e)                                  Choice
of Law.  This Agreement will be
governed by and construed in accordance with the internal laws of the State of
Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.


 


(f)                                    Remedies.  Except as provided in Section 4(d)
hereof, if any contest or dispute arises between the parties with respect to
this Agreement, such contest or dispute shall be submitted to binding
arbitration for resolution in New York City in accordance with the rules and
procedures of the American Arbitration Association then in effect.  The decision of the arbitrator shall be
final and binding on both parties, and any court of competent jurisdiction may
enter judgment upon the award.  Each
party shall pay its own legal fees and expenses incurred in connection
therewith.


 


(g)                                 Amendment
and Waiver.  The provisions of this
Agreement may be amended and waived only with the prior written consent of the
Company and Executive.


 


(h)                                 Insurance.  The Company, at its discretion, may apply
for and procure in its own name and for its own benefit life and/or disability
insurance on Executive in any amount or amounts considered available.  Executive agrees to cooperate in any medical
or other examination, supply any information, and to execute and deliver any
applications or other instruments in writing as may be reasonably necessary to
obtain and constitute such insurance. 
Executive hereby represents that he has no reason to believe that his
life is not insurable at rates now prevailing for healthy men of his age.


 


(i)                                     Business
Days.  If any time period for giving
notice or taking action hereunder expires on a day which is a Saturday, Sunday
or holiday in the state in which the Company’s chief executive office is
located, the time period shall be automatically extended to the business day
immediately following such Saturday, Sunday or holiday.


 


IN WITNESS WHEREOF, the parties hereto have executed
this Employment Agreement on the date first written above.


 


	
   

  	
  WORLDXCHANGE CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Its:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  James Ducay

  



 


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Exhibit A


 


WHEREAS, the Company owns
and provides management services to portfolio companies which operate in
certain segments of the telecommunications industry;


 


WHEREAS, one of the
strategic goals of the Company is to identify new platforms within the
telecommunications industry for future acquisitions by the Company;


 


WHEREAS, the Board of
Directors has established a Management Executive Committee to assist the Board
in connection with the management of the Company’s portfolio companies and in
connection with the identification and integration of new platforms;


 


WHEREAS, the Board of
Directors wishes to expand the responsibility of the Management Executive
Committee;


 


NOW, THEREFORE, BE IT
RESOLVED, that a Management Executive Committee of the Company be, and it
hereby is, established and that the Management Executive Committee shall have
the responsibility for assisting the Board of Directors of the Company in
connection with (i) overseeing the management of the Company’s portfolio
companies, (ii) identifying and developing new platforms for the Company, (iii)
providing advice with respect to the interaction of such new platforms with the
portfolio companies of the Company with the objective of maximizing the value
created among them and  (iii) ensuring
that the integrated network, consisting of the network assets of I-Link
Incorporated and WorldxChange Corp., the network assets to be acquired from RSL
COM U.S.A., Inc. and any other network assets that the Company may acquire in
the future, is efficiently and appropriately supporting those subsidiaries of
the Company marketing and selling telecommunications services directly to end
users and customers (the “Customer-Facing Companies”); and further


 


RESOLVED, that William
Barker, Mufit Cinali and Gary Wasserson, members of the Board of Directors of
the Company, James Ducay and the Chief Executive Officers of each of the
Customer-Facing Companies be, and they hereby are, appointed as the members of
the Management Executive Committee.


 


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