Exhibit 10(ss)
EMPLOYMENT AGREEMENT
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AGREEMENT made the 30th day of March, 2002, by and between Access
Worldwide Communications Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Xxxxxx (the "Employee").
W I T N E S S E T H
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WHEREAS, the Company wishes to assure itself of the services of the
Employee, and the Employee wishes to serve in the employ of the Company, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment, Term. The Company hereby employs the Employee on the terms
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hereinafter set forth for a period of two (2) years from the date first above
written, unless sooner terminated in accordance with this Employment Agreement
("Agreement").
2. Position, Duties. The Employee shall serve the Company (and each of the
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Company's wholly owned subsidiaries) as President and Chief Executive Officer.
The Employee shall perform his duties and responsibilities hereunder faithfully
and diligently. The Employee shall devote his full time and attention to the
performance of his duties and responsibilities hereunder. The Employee hereby
represents that he is not bound by any confidentiality agreements or restrictive
covenants which restrict or may restrict his ability to perform his duties
hereunder, and agrees that he will not enter into any such agreements or
covenants during the term of his employment hereunder, except such restrictive
covenants or confidentiality agreements which are required by the Company.
3. Compensation.
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3.1 Base Salary. During the term of this Agreement, in consideration
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of the performance by the Employee of the services set forth in Section 2 and
his observance of the other covenants set forth herein, the Company shall pay
the Employee, and the Employee shall accept, a base salary at the rate of
$150,000 per annum, payable in accordance with the standard payroll practices of
the Company. In addition to the base salary payable hereunder, the Employee may
be entitled to receive merit increases in salary during the term hereof in such
amount and at such times as shall be reasonably determined by the Compensation
Committee of the Board of Directors of the Company, in its discretion. In no
event shall the failure to grant any such increase (or the amount of any such
increase) give rise to a claim by the Employee under this Agreement.
3.2. Bonus. The Employee shall be eligible to receive an annual bonus
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of up to fifty percent (50%) of his base salary based on achievement of
quantitative and qualitative goals as established by the Compensation Committee
of the Board of Directors of the Company, in its
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sole discretion. Any bonus awarded hereunder shall be paid contemporaneously
with other discretionary bonuses paid to officers of the Company.
3.3 Stock Options If available under and pursuant to the Company's
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1997 Stock Option Plan, as amended from time to time, the Employee shall receive
150,000 stock options per each year of the two (2) year term of this Agreement,
with the first 150,000 options earned and granted on the first business day
after the 2002 Annual Shareholders Meeting of the Company, and the second
150,000 options earned and granted on the first business day after January 1,
2003.
4. Expense Reimbursement. During the term of the Employee's employment by
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the Company pursuant to this Agreement, consistent with the Company's policies
and procedures as may be in effect from time to time, the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefor in accordance with the Company's
policies.
5. Other Benefits. During the term of the Employee's employment by the
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Company pursuant to this Agreement, the Employee shall be entitled to receive
three (3) weeks paid vacation time per annum and such other benefits (including
without limitation customary medical, dental, vision, short term disability,
long term disability and life insurance) as are from time to time made available
to other officers of the Company, on the same terms as are available to such
other officers, it being understood that the Employee shall be required to make
the same contributions and payments in order to receive any of such benefits as
may be required of such other officers. The Employee shall also receive an
automobile allowance of $800.00 per month.
6. Termination of Employment.
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6.1 Death. In the event of the death of the Employee during the term
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of this Agreement, the Company shall pay to the estate or other legal
representative of the Employee (i) the salary provided for in Section 3.1 (at
the annual rate then in effect) accrued to the Employee's date of death and not
theretofore paid, and the estate or other legal representative of the Employee
shall have no further rights under this Agreement.
6.2 Disability. If the Employee shall become incapacitated by reason
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of sickness accident or other physical or mental disability and shall for a
period of thirty (30) consecutive calendar days be unable to perform his normal
duties hereunder, with or without reasonable accommodation, the employment of
the Employee hereunder may be terminated by the Company upon five (5) days prior
written notice to the Employee. Promptly after such termination, the Company
shall pay to the Employee the salary provided for in Section 3.1 (at the annual
rate then in effect) accrued to the date of such termination and not theretofore
paid. Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9, and
10.
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6.3 Other Termination. The employment of the Employee hereunder may be
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terminated by the Company or the Employee at any time during the term of this
Agreement after thirty (30) days written notice of termination. Promptly after
such termination, the Company shall pay to the Employee the salary provided for
in Section 3.1 (at the annual rate then in effect) accrued to the date of such
termination and not theretofore paid, all expense reimbursements under Section 4
accrued to the date of such termination and not theretofore paid, and all
benefits under Section 5 accrued to the date of such termination and not
theretofore paid. Neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8,
9, and 10.
6.4 Vesting of Stock and Options. If the Employee's employment is
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terminated by the Company, all options granted pursuant to the Company's 1997
Stock Option Plan, or any successor thereto, shall become fully vested options.
6.5 Rights to Benefits. Except as otherwise set forth herein, upon
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termination of employment under any provision contained in this Section 6,
rights and benefits of the Employee, her estate or other legal representative
under the employee benefit plans and programs of the Company, if any, will be
determined in accordance with the terms and provisions of such plans and
programs. Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9, and
10.
7. Confidential Information.
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7.1 (a) The Employee shall, during the Employee's employment with the
Company and at all times thereafter, treat all confidential material (as
hereinafter defined) of the Company or any of the Company's subsidiaries,
affiliates or parent entities (the Company and the Company's subsidiaries,
affiliates and parent entities being hereinafter collectively referred to as the
"Company Group") confidentially. The Employee shall not, without the prior
written consent of the CEO of the Company, disclose such confidential material,
directly or indirectly, to any party, who at the time of such disclosure is not
an employee or agent of any member of the Company Group, or remove from the
Company's premises any notes or records relating thereto, copies or facsimiles
thereof (whether made by electronic, electrical, magnetic, optical, laser,
acoustic or other means), or any other property of any member of the Company
Group. The Employee agrees that all confidential material, together with all
notes and records of the Employee relating thereto, and all copies or facsimiles
thereof in possession of the Employee (whether made by the foregoing or other
means) are the exclusive property of the Company.
(b) For the purposes hereof, the term "confidential material"
shall mean all information in any way concerning the activities, business or
affairs of any member of the Company Group or any of the customers of any member
of the Company Group, including, without limitation, information concerning
trade secrets, together with all sales and financial information concerning any
member of the Company Group and any and all information concerning projects in
research and development or marketing plans for any products or projects of the
Company Group, and all information concerning the practices and customers of any
member of the Company Group; provided however, that the term "confidential
material" shall
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not include information which becomes generally available to the public other
than as a result of a disclosure by the Employee.
7.2 Promptly upon the request of the Company, the Employee shall
deliver to the Company all confidential material relating to any member of the
Company Group in the possession of the Employee without retaining a copy thereof
(provided, however, that the Employee shall be entitled to retain a list of such
confidential material so long as the form of such list is reasonably acceptable
to the Company), unless, in the written opinion of counsel for the Company
delivered to the Employee, either returning such confidential material or
failing to retain a copy thereof would violate any applicable Federal, state,
local or foreign law, in which event such confidential material shall be
returned without retaining any copies thereof as soon as practicable after such
counsel advises in writing to the Employee that the same may be lawfully done.
7.3 In the event that the Employee is required, by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process, to disclose any confidential material
relating to any member of the Company Group, the Employee shall provide the
Company with prompt notice thereof so that the Company may seek an appropriate
protective order and/or waive compliance by the Employee with the provisions
hereof.
8. Non-Competition.
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8.1 The Employee acknowledges that the services to be rendered by him
to the Company are of a special and unique character. The Employee agrees that,
in consideration of his employment hereunder, the Employee will not, directly or
indirectly, (a) so long as he is employed pursuant to this Agreement and for two
years thereafter, (w) engage, whether as principal, agent, investor,
distributor, representative, stockholder, employee, consultant, volunteer or
otherwise, with or without pay, in any activity or business venture, which is
competitive with the business of the Company or any other members of the Company
Group, (x) solicit or entice or endeavor to solicit or entice away from any
member of the Company Group any person who was or is at the time of
solicitation, a director, officer, employee, agent or consultant of such member
of the Company Group, on the Employee's own account or for any person, firm,
corporation or other organization, whether or not such person would commit any
breach of such person's contract of employment by reason of leaving the service
of such member of the Company Group, (y) solicit or entice or endeavor to
solicit or entice away any of the clients or customers or potential customers of
any member of the Company Group, either on the Employees own account or for any
other person firm, corporation or organization, or (z) employ any person who was
or is at the time of the solicitation, a director, officer or employee of any
member of the Company Group or any person who is or may be likely to be in
possession of any confidential information or trade secrets relating to the
business of any member of the Company Group, or (b) at any time make any
statement intended to disparage or impair the business reputation of any member
of the Company Group.
8.2 The Employee and the Company agree that if, in any proceeding, the
court or authority shall refuse to enforce the covenants herein set forth
because such covenants cover
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too extensive a geographic area or too long a period of time, any such covenant
shall be deemed appropriately amended and modified in keeping with the intention
of the parties to the maximum extent permitted by law.
8.3 The Employee expressly acknowledges and agrees that the covenants
and agreements set forth in this Section 8 are reasonable in all respects, and
necessary in order to protect, maintain and preserve the value and goodwill of
the Company Group, as well as the proprietary and other legitimate business
interests of the members of the Company Group. The Employee acknowledges and
agrees that the covenants and agreements of the Employee set forth in this
Section 8 constitute a significant part of the consideration given by the
Employee to the Company in exchange for the salary and benefits provided for in
this Agreement, and are a material reason for such payment.
9. Intellectual Property.
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9.1 Any and all intellectual property, inventions or software made,
developed or created by the Employee (a) during the term of this Agreement or
(b) within a period of one year after the termination of the Employee's
employment with the Company or any other member or the Company Group, which
reasonably relate to the business conducted by the Company during the term of
the Employee's employment by the Company (each, an "invention"), whether at the
request or suggestion of the Company or otherwise, whether alone or in
conjunction with others, and whether during regular working hours of work or
otherwise, shall be promptly and fully disclosed by the Employee to the CEO of
the Company and/or the Board of Directors of the Company and shall be the
Company's exclusive property as against the Employee, and the Employee shall
promptly deliver to the CEO of the Company and/or the Board of Directors all
papers, drawings, models, data and other material relating to any Invention
made, developed or created by her as aforesaid. In addition, the Employee
covenants and agrees to disclose to the Board of Directors any Invention
developed or created by the Employee during the term of this Agreement which
reasonably relates to the business conducted by the Company during the term of
the Employee's employment by the Company.
9.2 The Employee hereby expressly acknowledges and agrees that an
Invention developed or created by the Employee during the term of this Agreement
which reasonably relates to the business of the Company or any other member of
the Company Group or which reasonably relates to the business conducted by the
Company during the Employee's employment by the Company shall be considered
"works made for hire" within the meaning of the Copyright Act of 1976, as
amended (17 U.S.C. (S) 101). Each such Invention as well as all copies of such
Invention in whatever medium fixed or embodied, shall be owned exclusively by
the Company as of the date of creation.
9.3 The Employee shall, upon the Company's request and without any
payment therefor, execute any documents necessary or advisable in the opinion of
the Company's counsel to direct issuance of patents or copyrights of the Company
with respect to such Invention as are to be in the Company's exclusive property
as against the Employee under this Section 9 or to vest in the Company title to
such inventions as against the Employee, the expense of securing
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any such patent or copyright, to be borne by the Company. In addition, the
Employee agrees not to file any patent, copyright or trademark application
related to such Invention.
10. Equitable Relief. In the event of a breach or threatened breach by the
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Employee of any of the provisions of Sections 7, 8, or 9 of this Agreement, the
Employee hereby consents and agrees that the Company shall be entitled to
pre-judgment injunctive relief or similar equitable relief restraining the
Employee from committing or continuing any such breach or threatened breach or
granting specific performance of any act required to be performed by the
Employee under any of such provisions, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and
without the necessity of posting a bond or other security. The parties hereto
hereby consent to the jurisdiction of the federal courts located in the Southern
District of Florida and the state courts located in such District for any
proceedings under this Section 10. Nothing herein shall be constructed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have.
11. Successors and Assigns.
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11.1 Assignment by the Company. The Company may assign this Agreement
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to any member of the Company Group or Successor to the Company, and the Employee
hereby consents to such assignment.
11.2 Assignment by the Employee. The Employee may not assign this
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Agreement or any part hereof.
12. Governing Law. This Agreement shall be deemed a contract made under,
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and for all purposes shall be construed in accordance with, the laws of the
State of Florida applicable to contracts to be performed entirely within such
State.
13. Entire Agreement. This Agreement contains all the understandings and
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representations between the parties hereto pertaining to the subject matter
hereof and supersedes, in their entirety, all undertakings and agreements,
whether oral or in writing, if there by any, previously entered into by them
with respect to employment, severance, and any and all other matters set forth
or reasonably contemplated herein; provided, however, that Section 8 shall not
serve as a limitation of the terms of any other non-competition agreement
between the Employee and any member of the Company Group.
14. Modification and Amendment; Waiver. The provisions of the Agreement may
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be modified, amended or waived, but only upon the written consent of the party
against whom enforcement of such modification, amendment or waiver shall be
effective only to the extent set forth in such writing. No delay or failure on
the part of any party hereto in exercising any right, power or remedy hereunder
shall effect or operate as a waiver thereof, nor shall any single or partial
exercise thereof or any abandonment or discontinuance of steps to enforce such
right, power, or remedy preclude any further exercise thereof or of any other
right, power or remedy.
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15. Notices. Any notices, demands or other communication given in
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connection herewith shall be in writing and be deemed given (i) when personally
delivered, (ii) sent by facsimile transmission to a number provided in writing
by the addressee and a confirmation of the transmission is received by the
sender or (iii) three (3) days after being deposited for delivery with a
recognized overnight courier, such as FedEx, with directions to deliver within
three (3) days, and addressed or sent, as the case may be, to the address or
facsimile number set forth below or to such other address or facsimile number as
such party may designate in accordance herewith:
When the Company is the intended recipient:
Access Worldwide Communications, Inc.
Attention: Chairman, Compensation Committee
0000 Xxxxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No.: 0-000-000-0000
When the Employee is the intended recipient:
Xxxxxxx Xxxxxx
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Facsimile:
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16. Severability. Should any provision of this Agreement be held by a court
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of competent jurisdiction to be enforceable only if modified, such holding shall
not affect the validity of the remainder of this Agreement, the balance of which
shall continue to be binding upon the parties hereto with any such modification
to become a part hereof and treated as though originally set forth in this
Agreement. The parties further agree that any such court is expressly authorized
to modify any such unenforceable provision of this Agreement in lieu of severing
such unenforceable provision this Agreement in its entirety, whether by
rewriting the offending provision, deleting any or all of the offending
provision, adding additional language to this Agreement, or by making such other
modifications as it deems warranted to carry out the intent and agreement of the
parties as embodied herein to the maximum extent permitted by law. The parties
expressly agree that this Agreement as so modified by the court shall be binding
upon and enforceable against each of them. In any event, should one or more of
the provisions of this Agreement be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and if such provision or provisions are not
modified as provided above, this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been set forth herein.
17. Survivorship. The respective rights and obligations of the parties
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hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
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EXECUTED AS OF THE DATE FIRST ABOVE WRITTEN:
For the Company For the Employee
By: By:
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Chairman, Compensation Committee Xxxxxxx Xxxxxx
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