EXHIBIT 10.8
1ST AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment of December 4, 1998 modifies the Employment Agreement of February
1, 1997, hereinafter "Agreement" between Access Authority, Inc. and Xxxx X.
Xxxxx attached hereto and incorporated by reference herein.
WHEREAS the Agreement provides for the terms and conditions of employment by
Access Authority, Inc. of Xxxx X. Xxxxx, AND:
The parties desire to make certain modifications to the Agreement, AND:
The Agreement shall remain in force with each party legally bound by the mutual
covenants and agreements therein provided.
AMENDMENTS
AMENDMENT 1
The original paragraph 2. DUTIES AND PERFORMANCE shall be deleted in its
entirety and replaced by the following:
2. Duties AND PERFORMANCE
During the term of this Agreement the Employee shall observe and conform to
the policies and directions promulgated from time to time by Employer and devote
his full business time, energy, ability, attention and skill to his employment
hereunder. Employee shall at all times faithfully, industriously and to the best
of Employee's abilities, experience and talents perform all of the duties that
may be required hereunder. During the term of Employee's employment under this
Agreement (the "Employment Period") Employee shall perform duties consistent
with the position of Executive Vice President of Operations and such other
duties as shall reasonably be required by the President or the Board of
Directors of Access. Employee shall likewise perform such other duties for
Employer, or any subsidiary, parent company, affiliate, or division of the
Employer as the Employer may reasonably request. The Employee shall perform the
services contemplated under this Agreement at such location or locations as the
Employer may from time to time reasonably direct, but, Employee shall be
primarily based in Tampa, Florida. Employee shall, however, travel to other
locations at such times as may be appropriate for the performance of his duties
and as reasonably directed by Employer.
AMENDMENT 2
The original Paragraph 3. TERM OF EMPLOYMENT provides for an Employment Period
term which expires on January 31, 1999. The parties hereby extend the Employment
Period term until September 30, 1999.
AMENDMENT 3
The original paragraph 4. COMPENSATION (a) sub paragraph (1) providing for a
base salary is amended as follows:
The rate for calculation of the Base Salary payable in equal bi-weekly
installments shall be increased to $150,000 per year beginning on October 1,
1998.
The original paragraph 4. COMPENSATION (a) is amended to include sub paragraph
(iv) as follows:
(iv) a sales bonus consisting of one half of one percent
(0.5%) of the increase in Access Authority's monthly Total Net Sales over the
base amount of $1,908,500, payable monthly after the official Access Authority
financial results for the previous month are available. Total Net Sales are
defined as the total sales less adjustments and credits and provision for bad
debt. Results are determined at the sole discretion of the Vice President of
Finance of Ursus Telecom Corporation, subject to adjustments by the independent
auditors of Ursus Telecom Corporation. Such sales bonus commences with the month
of October, 1998 and continues until the month of September, 1999.
The original paragraph 4. COMPENSATION (a) is amended to include sub paragraph
(v) as follows:
(v) a profitability bonus, rounded to the nearest $ 1,000, of three percent
(3%) of the increase in Net Income from Operations for the period October
1, 1998 to September 30, 1999 above the base level of $1,847,000, payable
in the month of October, 1999 after the official Access Authority financial
results for the previous 12 months are available. Results are determined at
the sole discretion of the Vice President of Finance of Ursus Telecom
Corporation, subject to adjustments by the independent auditors of Ursus
Telecom Corporation.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment on December 4, 1998.
By: /s/ Luca M. Giussani Chief Executive Officer
Luca M. Giussani Chief Executive Officer
BY: /s/ Xxxx X. Xxxxx
Xxxx x. Xxxxx
EMPLOYMENT AGREEMENT
This Agreement is made as of February 1, 1997 by and between Access
Authority, Inc., a Delaware corporation, or its successor in interest
("Access"), and Xxxx X. Xxxxx ("Employee").
RECITALS
Employee presently servers as Vice President of Access and Access desires
to continue Employee's employment on the terms and conditions set forth herein.
WITNESSETH:
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein provided, the parties hereto, each intending to be legally bound hereby,
agrees as follows:
1. EMPLOYMENT AND DUTIES.
Access hereby employs or continues to employ Employee as Executive Vice
President of Operations, and Employee accepts the continuation of such
employment on the terms and continuations set forth in this Agreement.
2. DUTIES AND PERFORMANCE.
During the term of Employee's employment under this Agreement (the
"Employment Period"), Employee shall perform duties consistent with the position
of Executive Vice President of Operations and such other duties as shall
reasonably be required by the Chief Executive Officer ("CEO") or the Board of
Directors of Access. Employee shall at all times faithfully, industriously and
to the best of the Employee's abilities, experience and talents perform all of
the duties that may be required hereunder.
3. TERM OF EMPLOYMENT.
Unless Employee's employment hereunder is earlier terminated in accordance
with this Agreement, the Employment Period shall be for a term of two (2) years
from the date hereof, and such employment shall continue under this Agreement
until either party terminates such employment as set forth herein.
4. COMPENSATION.
(a) SALARY AND BENEFITS. As compensation for all services rendered by
Employee hereunder during the Employment Period, Employee shall be entitled to,
subject to withholding and other applicable taxes, the following:
(i) a "Base Salary" at the rate of $125,000 per year, payable in equal
bi-weekly installments beginning on April 15, 1997; Base Salary will be reviewed
at the end of each calendar year but no increase in the Base Salary is
guaranteed and all such increases are at the sole discretion of the Board of
Directors of Access; however, merit increases will be considered at the
discretion of the Board of Directors;
(ii) participation in any fringe benefit plan or program which Access may
from time to time during Employee's Employment Period afford to the other senior
executive officers of Access; however, nothing in this Agreement shall require
Access to establish, maintain or continue any of the fringe benefits already in
existence for employees of Access and nothing in this Agreement shall restrict
the right of Access to amend, modify or terminate such fringe benefit programs.
(iii) vacations in accordance with the current policy of Access, but
Employee shall not be entitled. to any additional compensation for any vacation.
time not used by him.
5. EXPENSES.
Access will reimburse Employee for all reasonable expenses, including
travel. and entertainment expenses, incurred by Employee in connection with the
performance of Employee's duties hereunder, providing such expenses are approved
by the Chief Financial Officer or the CEO of Access prior to the time such
expenses are incurred and upon submission to Access of a summary of such
expenses with vouchers supporting said expenses as Access may reasonably
require. Employee will be reimbursed for mileage in connection with the use of
Employee's automobile in connection with the performance of Employee's duties
hereunder. Reimbursement for mileage will be based on the Internal Revenue
Service's standard mileage allowance then in effect. The RIA Federal Tax
Handbook states that when the standard mileage rate is used, it eliminates any
further recovery for depreciation, maintenance and repairs, tires, gasoline,
taxes on gasoline, oil, insurance or registration fees.
6. CONFIDENTIAL INFORMATION.
For purposes of this Agreement, the term "Confidential information" shall
mean all know-how and information, whether or not in writing, of a private,
secret or confidential nature concerning the business or financial affairs of
Access including, but not limited to, information encompassed in all plans,
proposals, marketing plans, financial information, costs, pricing information,
computer programs, personnel data, customer and supplier lists and all other
concepts or ideas that have not previously been released publicly by duly
authorized representatives of Access. Employee shall not, during his employment
hereunder and for two years thereafter, use or divulge, except in the regular
course of and to further Access' business, any Confidential Information;
PROVIDED. HOWEVER, that Employee has no obligation to refrain from using or
disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than by disclosure by Employee or
anyone else who has an obligation of confidentiality with respect to such
information.
7. NON - SOLICITATION.
In consideration of the payments stated in Paragraph 4 and other good and
valuable consideration stated herein, Employee agrees as follows:
(a) Employee wan-ants and covenants that as of the date of this Agreement,
first stated above, neither the employee, nor any Em, organization or
corporation in which he is interested, shall, within two (2) years after the
termination of his employment hereby, for any reason, contact, hire, retain,
advise, consult with any person who is an employee of Access, directly or
indirectly persuade or attempt to persuade, solicit, induce, recruit any person
employed by Access to leave the employ of Access or to become employed by any
person other than Access or any of its subsidiaries as of the date of such
termination or was such an employee within six (6) months prior to the date of
such termination.
(b) Employee warrants and covenants that as of the date of this Agreement,
first stated above, neither the employee, nor any firm, organization or
corporation in which he is interested, shall, within two (2) years after the
termination of his employment hereby, for any reason, directly or indirectly,
persuade or attempt to persuade any customer, agent, wholesaler, or client of
Access, or any potential customer, agent, wholesaler, or client to which Access;
has made a presentation or with which Access has been having discussions, to not
transact business: with Access or to transact business with the Employee or any
other entity as an alternative to or in addition to Access; and
(c) Employee acknowledges that violation of this Paragraph l would result
in irreparable harm to Access, and that in the event of any breach or threatened
breach by Employee of this Paragraph 1, Access shall be entitled to injunctive
relief or other equitable relief, restraining Employee from engaging in conduct
that would constitute a breach of Employee's obligations under this paragraph.
Such equitable relief shall be in addition to and not in lieu of any other
remedy that may be available. to Access, including without limitation, an action
for the recovery damages.
8. OTHER EMPLOYMENT.
During the Employment Period, Employee shall devote all of his working
time, attention, knowledge, skills and best efforts solely to the diligent
performance of his duties and to the business and interests of Access, and
Access shall be entitled to all the benefits, profits and advantages arising
from or incident to all work, services and advice of Employee.
9. DEVELOPMENTS.
All new techniques, know-how, pl4ns, and products developed, made or
invented by Employee, alone or with others, while an. employee of Access whether
during business hours or otherwise shall become and be the sole property of
Access unless released in writing by Access.
10. TERMINATION OF EMPLOYMENT
(a) Death. If an Employee dies during his employment hereunder, his Base
Salary and other benefits hereunder shall terminate as of the last day of the
month in which he dies.
(b) DISABILITY. If Employee becomes unable, for a period of ninety (90)
consecutive days, to perform his duties hereunder or is, substantially
restricted for a like period in the performance of such duties by reason of his
sickness or disability, Employee's employment, Base Salary, and other benefits
hereunder may be terminated by Access as of or after the end of the month in
which the said ninety day period ends.
(c) FOR CAUSE. The employment of Employee hereunder may be terminated by
Access at any time for justifiable cause, such as, but not limitation (i) if
Employee engages in criminal conduct, dishonesty, fraud, misappropriation,
embezzlement, or deliberate and premeditated acts against the interests of
Access, (ii) the commission by Employee of any action involving moral turpitude,
(iii) if Employee willfully and in bad faith engages in any conduct materially
harmful to the business of Access or (iv) neglect of duties assigned pursuant
hereto or failure to keep and perform the terms and conditions as set forth
herein. If the employment of Employee is terminated for cause, as sit forth in
the preceding sentence, Employee's right to receive the Base Salary and other
benefits hereunder shall terminate as of the date of such termination.
(d) BY EMPLOYEE. Employee may voluntarily terminate his employment under
this Agreement upon sixty days prior notice to Access and upon such termination
Employee's right to receive the Base Salary and other benefits hereunder shall
terminate.
(e) REMOVAL WITHOUT CAUSE. Access shall have the right at any time and for
any reason to terminate the employment of Employee hereunder. If such
termination by Access is not by reason of disability pursuant to Paragraph (b)
of this Section 9 or for cause pursuant to Paragraph (c) of this Section 9,
Employee's Base Salary and other benefits hereunder at the time of such
termination shall continue until the later of (i) the date which is two years
after the date of this Agreement or (ii) the end of the month in which such
termination occurs.
(f) RETURN OF MATERIALS. Employee shall, upon any termination of his
employment hereunder, immediately return to Access any and all materials, and
copies thereof, previously received or obtained by him from Access or prepared
by him in connection with his employment hereunder and files, letters,
memoranda, reports, records, computer programs, listings or other written,
photographic or other tangible material containing any Confidential Information
whether created by him, employees of Access or others which shall come into his
possession.
11. OTHER AGREEMENTS.
Employee hereby represents and warrants that he is not bound by the terms
of any agreement or commitment with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of his employment by Access or to refrain from
competing directly or indirectly with the business of such previous employer or
other party. Employee FURTHER Represents and warrants that his performance of
all the terms of this Agreement and as an employee of Access will not breach any
agreement to keep in confidence proprietary information, knowledge or data
acquired by him in confidence or in trust prior to his employment by Access.
Employee shall and does hereby indemnify and hold Access harmless from and
against any and all liability, loss, claim. or expenses (including reasonable
attorney's fees) incurred by or imposed. upon Access arising from or based upon
a claim that Employee has breached any agreement with any other person, firm or
company, including, without limitation, a confidentiality agreement or a
covenant not to compete.
12. General.
(a) GOVERNING LAW. The terms of this Agreement shall be governed by the
laws of the Commonwealth of Pennsylvania.
(b) ASSIGNABILITY. Employee may not assign his interest in this Agreement
but Access may assign this Agreement to any successor in interest to Access'
business.
(c) BINDING EFFECT. The terms and conditions of this Agreement shall be
binding upon the successors, assigns, heirs, distributees, administrators,
executives and legal representatives of the parties hereto.
(d) ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties hereto with respect to the subject matter hereof
(e) NOTICES. When any notice is required or permitted to be given under any
provision of this Agreement, such notice shall be in writing signed by or on
behalf of the parry giving the notice and shall be (as elected by the person
giving such notice) personally delivered or mailed by pre-paid registered or
certified mail with return receipt requested to the party to whom such notice is
to be given. All notices shall be deemed to have been given on the date of
receipt if personally delivered or three days after posting if transmitted by
mail.
(f) AMENDMENT. This Agreement may be amended or modified from time to, time
only by a writing signed by the parties hereto.
(g) EQUITABLE RELIEF. The parties acknowledge that certain violations of
this Agreement can not be compensated for in damages alone. Therefore, in
addition to all of the other remedies which may be available under applicable
law, any party hereto shall have the terms of this Agreement by obtaining
injunctive relief against any violation or non-performance hereof.
(h) LITIGATION . Any action or claim at law or equity arising under or
related to, this Agreement shall be brought only in the Courts; of Pennsylvania,
or in the United States District Court for the Eastern District of Pennsylvania,
and the parties hereto hereby consent to personal jurisdiction and venue in said
courts.
(i) CONSTRUCTION OF AGREEMENT. In case any provision of this Agreement
shall for any reason be held to, be invalid, illegal or unenforceable, such
holding shall not affect the validity, legality or enforceability of the
remaining provisions of this Agreement which shall be construed as if such
invalid, illegal or unenforceable provision had never been included herein.
(j) HEADING. The section and paragraph headings of this Agreement are for
convenience only, and form no part of this Agreement and shall not effect its
interpretation.
(k) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon and all of which shall together constitute
one and the same instrument.
(l) SURVIVAL. The covenants, agreements, representations and warranties
contained in or made pursuant to this Agreement shall survive the termination of
Employee's employment hereunder.
(m) WAIVER. No waiver by Access or Employee of any breach by the other
party to this Agreement shall be construed to be a waiver as to succeeding
breaches.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
ACCESS AUTHORITY, INC.
/s/ Xxxx X Xxxxxxxx Chief Executive Officer
Xxxx X Xxxxxxxx
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
