exv10w23



 


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
Company.



          Section 4. Confidentiality.



          (a) Executive agrees that at all times, both during and 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 with respect to the
operations, businesses, affairs, products, services, technology, intellectual
properties, Agents, customers, clients, pricing of products or services,
policies, procedures, accounts, personnel, concepts, format, style, techniques
or software of the Company or any Subsidiary or Affiliate of the Company
(“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 of the Company,
acquisition targets of the Company or any Subsidiary or Affiliate of the
Company 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 there from are not confidential; 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




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of Executive’s employment
hereunder and all copies thereof; and that the Company may, in its sole
discretion, upon or after termination of Executive’s employment by the Company,
notify Executive’s new employer, clients or other parties that Executive has
had access to certain trade secrets, information, knowledge or data which
Executive is under a continuing obligation not to use or disclose.
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) In order to protect the Proprietary Information, Executive agrees that
for a period of eighteen (18) months following the expiration or termination of
Executive’s employment hereunder, Executive will not, directly or indirectly,
for Executive’s own account or as a partner, joint venturer, employee, agent,
or consultant: (a) employ as an employee, engage as an independent contractor
or agent or otherwise retain or solicit or seek to so employ, engage, retain or
solicit any person who, during any portion of the two (2) years prior to the
date of expiration or termination of Executive’s employment was, directly or
indirectly, employed as an employee, engaged as an independent contractor or
Agent or otherwise retained by the Company or any Subsidiary or Affiliate of
the Company; or (b) induce any person or entity (except for individuals
considered to be clerical or secretarial staff) to leave his or her employment
with the Company, terminate an independent contractor or Agent relationship
with the Company or terminate or reduce any contractual relationship with
Company or any Subsidiary or Affiliate of the Company or (c) directly or
indirectly induce or influence any Agent, customer, supplier, or other person
that has a business relationship with the Company or any Subsidiary or
Affiliate of the Company to discontinue or reduce the extent of such
relationship. 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 a partner,
joint venturer, employee, agent or consultant takes any action that would
otherwise violate the terms of this Section 4(b), so long as
such action is taken without the knowledge of Executive and not with respect to
any Person identified by Executive to the Person taking such action.



          (c) All processes, improvements, formulations, ideas, inventions, designs
and discoveries, whether patentable or not (collectively
“Discoveries”) and all patents, copyrights, trademarks, and
other intangible rights (collectively “Intellectual Property
Rights”) that may be conceived or developed by Executive either alone
or with others, during the term of employment, whether or not conceived or
developed during working hours, and with respect to which any equipment,
supplies, facilities, or trade secret information of the Company or any
Subsidiary or Affiliate of the Company was used, or that related to the
business of the Company or any Subsidiary or Affiliate of the Company or to the
Company’s or any Subsidiary’s or Affiliate’s actual or demonstrably anticipated
research and development, or that result from any work performed by Executive
for the Company, shall be the sole property of the Company. As provided in
Section 2870 of the California Labor Code, the requirement to assign inventions
hereunder shall not apply to an invention that Executive develops entirely on
his own time without using the Company’s or any Subsidiary’s or Affiliate’s
equipment, supplies, facilities, or trade secret information, except for those
inventions that either (a) relate, at the time of conception or
reduction to practice of the invention to the Company’s or any
Subsidiary’s or Affiliate’s business, or actual or demonstrably anticipated
research or development of the Company or any Subsidiary or Affiliate of the
Company; or (b) result from any work performed by Executive for the Company or
any Subsidiary or Affiliate of the Company. Executive shall take all action and
execute and deliver all agreements, assignments and other documents, including,
without limitation, all patent applications and assignments, requested by the
Company or any Subsidiary or Affiliate of the




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Company to establish the rights
of the Company or any Subsidiary or Affiliate of the Company under this
Section 4(c) and to vest in the Company or any Subsidiary or
Affiliate of the Company title to all Discoveries and Intellectual Property
Rights which are the property of the Company or any Subsidiary or Affiliate of
the Company under this Section 4(c). Executive shall
disclose to the Company all Discoveries and Intellectual Property Rights
conceived during the term of employment which Executive believes meet the
criteria set forth in California Labor Code Section 2870, whether or not the
property of the Company or any Subsidiary or Affiliate of the Company under the
terms of the preceding sentence, provided that such disclosure shall be
received by the Company in confidence to the extent it pertains to Discoveries
and Intellectual Property Rights which are not the property of the Company
under this Section 4(c).


          (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 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. Acknowledgments By Executive.



          Executive understands that the restrictions contained in Section
4 herein may limit the ability of Executive to earn a livelihood in a
competing business, but Executive nevertheless believes that Executive has
received and will receive sufficient consideration and other benefits as an
employee of the Company and as otherwise provided hereunder to clearly justify
such restrictions which, in any event (given the education, skills and ability
of Executive), Executive does not believe would prevent him from earning a
livelihood



          Section 6. 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 7. Definitions.



          “Affiliate” of any particular Person means (i) any
other Person controlling, controlled by, or under common control with such
particular Person, 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.





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          “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, (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.



          “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



          (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 8. 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:




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	 	 	 	If to Company:




	 	 	 
	 	 	
Acceris Communications Inc.
	 	 	
9775 Business Park Avenue
	 	 	
San Diego, California 92131
	 	 	
Attention: Chief Executive Officer




	 	 	 	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.



          (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.




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          (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.



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


ACCERIS COMMUNICATIONS INC.



	 	 	 
	By: 
	 	
 
	Name:	 	 
	Its:	 	 
	 	 	 
	

James Ducay	 	 




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