EMPLOYMENT AGREEMENT
Exhibit
10.1
GLOBAL
AXCESS CORP, a Nevada corporation with its principal office in Jacksonville,
Florida (the “Corporation”)
and
Xxxxxx XxXxxxx, an individual residing in Jacksonville, Florida, (the
“Employee”)
have,
as of this 1st
day of
July, 2008, in consideration of the mutual promises and covenants of the
parties, together with other valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Corporation and Employee have
agreed as follows:
AGREEMENT
In
consideration of the mutual promises and covenants of the parties, together
with
other valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, Corporation and Employee have agreed as
follows:
1. Employment.
Corporation hereby employs Employee as President and Chief Executive Officer
of
the Corporation and Employee hereby accepts employment by the Corporation upon
the terms and conditions of this Agreement. The
parties acknowledge and agree that this Agreement materially enhances the terms
and conditions of Employee’s existing employment relationship with Employer, and
that no breach or interruption in the employment or service by Employee shall
be
deemed to have occurred as a result of the Corporation and Employee entering
into this Agreement.
2. Duties.
Employee shall serve as Chief Executive Officer. Employee shall perform such
duties as may be reasonably required by the Board of Directors, the Chairman
of
Corporation, or their designee from time to time. Changes in or additions to
Employee’s duties or title(s) under this Agreement are not to be accompanied by
additional compensation unless expressly agreed to by Corporation. During the
term of this Agreement, Employee agrees to serve Corporation faithfully and
to
devote substantially all of Employee’s business time, attention and energies to
the business of Corporation and to the proper and timely discharge of Employee’s
duties. Employee represents and warrants that Employee is not subject to any
agreement or contract with any person or entity that will in any manner prevent
Employee from performing any of Employee’s duties under this Agreement. Employee
further represents and warrants that Employee has not used or disclosed and
will
not use or disclose in the scope of Employee’s employment any confidential,
proprietary and/or trade secret materials, documents or information that
Employee obtained from a former employer or one to whom Employee may owe any
obligation of confidentiality or nondisclosure.
3. Remuneration
and Fringe Benefits.
3.1 As
full
and complete remuneration for all personal services rendered as an employee
pursuant to Paragraph 2 hereof, for so long as Employee is employed hereunder
by
Corporation, Employee shall receive the following:
3.1.1 Initial
compensation as set forth on Schedule 1 attached hereto. Such compensation
may
be adjusted from time to time by Corporation following notice to
Employee.
3.1.2 Such
applicable fringe benefits as may be provided by Corporation from time to time;
provided Employee is otherwise eligible and desires to participate; and provided
further, that Corporation shall not be obligated hereby to implement any
benefits not presently in existence or to continue to maintain any benefits
presently in existence or to provide special benefits to Employee.
3.1.3 Vacation
each year with pay in accordance with Corporation policy.
3.1.4 Reimbursement
for all ordinary, necessary and reasonable business expenses, including without
limitation travel expenses, incurred by Employee in accordance with Corporation
policy in effect from time to time and in connection with the performance of
Employee’s duties pursuant to Paragraph 2 hereof. Reimbursement of such expenses
shall be made after Employee presents appropriate written vouchers, bills,
reports or other substantiation for such expenses in form acceptable to the
Internal Revenue Service and in compliance with Corporation’s policy.
4. Term
and Termination.
4.1 The
initial term of this Agreement and Employee’s employment hereunder shall be for
a period of one (1) year, and shall commence effective July 1, 2008 and shall
expire at midnight on July 1, 2009. Absent a termination or notice of
termination as provided herein, beginning on the first anniversary of this
Agreement and at the end of each succeeding calendar year, the term shall
automatically extend for an additional one (1) year on the same terms and
conditions contained herein.
4.2 Notwithstanding
the provisions of paragraph 4.1, this Agreement and Employee’s employment
hereunder may be terminated as follows:
4.2.1 By
the
Corporation at any time, without notice and with immediate effect, for Cause.
“Cause”
means:
(i) Willful
failure of Employee to substantially comply with reasonable written directives
of Corporation’s Board of Directors or its designee.
(ii) Any
of
the following actions by Employee, if in the judgment of Corporation’s Board of
Directors or its designee such actions are materially injurious to
Corporation:
(a) actions
involving moral turpitude; or
(b) illegal
use of controlled substances.
4.2.2 By
the
Board of Directors of the Corporation, upon notice to the Employee of
termination without Cause.
4.2.3
By the
Employee for any reason.
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4.3 In
the
event of a termination of Employee’s employment hereunder without Cause by the
Corporation, and provided Employee complies with the Restrictive Covenants
and
signs a Release Agreement provided at the time by the Corporation, Employee
shall be entitled to receive the Employee’s base salary payable in installments
in accordance with the Corporation’s usual payroll practices over the following
time period: (i) if the termination occurs during the initial term, for the
remaining portion of such initial term, or for one (1) year after the date
of
termination of Employee’s employment, whichever is longer, or (ii) for any
termination occurring after the initial term, for one (1) year after the date
of
termination of Employee’s employment. Corporation will also pay Employee’s
health, life, dental, short term disability, and long term disability insurance
premiums during the same time period. Corporation will also pay Employee for
his
accrued but unused paid time off and any bonuses earned by the date of
Employee’s termination.
4.4 The
provisions of Subparagraph 4.3 and Paragraph 5 of this Agreement shall survive
termination or expiration of this Agreement or employment hereunder for any
reason. Except as provided in Paragraph 4.3, termination of employment shall
constitute termination of Corporation’s obligations under Paragraph 3 hereof,
effective immediately upon termination of employment.
5. Restrictive
Covenants.
For
purposes of this Agreement, “Restrictive
Covenants”
mean
the provisions of this Paragraph 5. It is stipulated and agreed that Corporation
is engaged in the business of providing ATM services (such business, together
with any other lines of business in which the Corporation becomes engaged during
the term of this Agreement, being referred to herein as the “Business”).
It is
further stipulated and agreed that as a result of Employee’s employment by the
Corporation, Employee will have access to valuable, highly confidential,
privileged, and proprietary information relating to Corporation’s Business,
including, without limitation, existing and future equipment information,
customer lists, identities of distributors and distributorships, sales methods
and techniques, costs and costing methods, pricing techniques and strategies,
sales agreements with customers, profits and product line profitability
information, unpublished present and future marketing strategies and promotional
programs, and other information regarded by Corporation as proprietary and
confidential (the “Confidential
Information”).
It is
further acknowledged that unauthorized use or disclosure by Employee of
Confidential Information would seriously damage Corporation in its Business.
In
consideration of the provisions of this Paragraph 5, the term of employment
granted to Employee in Paragraph 4 of this Agreement and the payments and
benefits referred to in Paragraphs 3 and 4.3 hereof, which Employee acknowledges
are legally sufficient to support enforceability by the Corporation of the
Restrictive Covenants against Employee, Employee agrees as follows:
5.1 During
the term of this Agreement and after its termination or expiration for any
reason, Employee will not, without Corporation’s prior written consent, use,
divulge, disclose, furnish, or make accessible to any third person, company,
or
other entity any aspect of Confidential Information (other than as required
in
the ordinary discharge of Employee’s duties hereunder).
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5.2 During
the term of this Agreement and for a period of one year and six months after
the
date of the expiration or termination of this Agreement for any reason (the
“Restrictive
Period”),
Employee shall not directly or indirectly:
(i) employ,
or solicit the employment of, any person who at any time during the twelve (12)
calendar months immediately preceding the termination or expiration of this
Agreement was employed by Corporation;
(ii) provide
or solicit the provision of products or services, similar to those provided
by
Corporation, to any person or entity who purchased or leased products or
services from Corporation at any time during the twelve (12) calendar months
immediately preceding the termination or expiration of this Agreement for any
reason and for or with whom Employee had contact, responsibility or access
to
Confidential Information related to such person or entity; provided, however,
the restrictions of this subsection (ii) shall be limited in scope to the
“Territory” (as defined below) and to any office, store or other place of
business in which, or in connection with which, Employee has had business
contact with such persons or entities during the twelve (12) calendar months
immediately preceding the termination or expiration of this Agreement for any
reason;
(iii) interfere
or attempt to interfere with the terms or other aspects of the relationship
between Corporation and any person or entity from whom Corporation has purchased
equipment, supplies or inventory at any time during the twelve (12) calendar
months immediately preceding the termination or expiration of this Agreement
and
for or with whom Employee had contact, responsibility or access to Confidential
Information related to such person or entity;
(iv) compete
with the Corporation, its successors and assigns by engaging, directly or
indirectly, in the Business as conducted or in a business substantially similar
to the Business within the “Territory,” as hereinafter defined; or
(v) provide
information to, solicit or sell for, organize or own any interest in (either
directly or through any parent, affiliate, or subsidiary corporation,
partnership, or other entity), or become employed or engaged by, or act as
agent
for any person, corporation, or other entity that is directly or indirectly
engaged in a business in the “Territory”, as hereinafter defined, which is
substantially similar to the Business as conducted by or competitive with
Corporation’s Business; provided, however, that nothing herein shall preclude
the Employee from holding not more than one percent (1%) of the outstanding
shares of any publicly held company which may be so engaged in a trade or
business identical or similar to the Business of the Corporation.
As
used
herein, the “Territory”
means
any state that Corporation did business within the last twelve (12) months
of
Employee’s employment and Employee had business contact with such persons or
entities during the twelve (12) calendar months immediately preceding the
termination or expiration of this Agreement for any reason.
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5.3 In
the
event of a breach or threatened breach by Employee of any of the Restrictive
Covenants contained in this Paragraph 5, Corporation, in addition to and not
in
derogation of any other remedies it may have, shall be entitled to any or all
of
the following remedies:
5.3.1 It
is
stipulated that a breach by Employee of the Restrictive Covenants would cause
irreparable damage to Corporation; Corporation, in addition to any other rights
or remedies which Corporation may have, shall be entitled to an injunction
restraining Employee from violating or continuing any violation of such
Restrictive Covenants; such right to obtain injunctive relief may be exercised,
at the option of Corporation, concurrently with, prior to, after, or in lieu
of,
the exercise of any other rights or remedies which the Corporation may have
as a
result of any such breach or threatened breach;
5.3.2 Employee
agrees that upon breach of any of the Restrictive Covenants, Corporation shall
be entitled to an accounting and repayment of all profits, royalties,
compensation, and/or other benefits that Employee directly or indirectly has
realized or may realize as a result of, or in connection with, any such
breach.
5.3.3 Employee
agrees that the Restrictive Period shall not include any period of time in
which
Employee is in violation of the Restrictive Covenants.
6. Change
of Control.
If there
is a change of control (defined as a change in the ownership of the Corporation
and Employee is not kept at the same salary and not permitted to retain the
same
job responsibilities he had in Jacksonville, Florida prior to the change in
ownership), then Employee may resign his position and provided Employee complies
with the Restrictive Covenants and signs a Release Agreement provided at the
time by the Corporation, Employee shall be entitled to receive the Employee’s
base salary payable in installments in accordance with the Corporation’s usual
payroll practices over the following time period: (i) if the termination occurs
during the initial term, for the remaining portion of such initial term, or
for
one (1) year after the date of termination of Employee’s employment, whichever
is longer, or (ii) for any termination occurring after the initial term, for
one
(1) year after the date of termination of Employee’s employment. Corporation
will also pay Employee’s health, life, dental, short term disability, and long
term disability insurance premiums during the same time period. Corporation
will
also pay Employee for his accrued but unused paid time off and any bonuses
earned by the date of Employee’s termination
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(a)
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“Change
of Control” shall mean a transaction consisting of a sale of all or
substantially all of the Company’s assets, or a merger, consolidation or
other capital reorganization of the Company with or into another
entity;
provided however that a merger, consolidation or other capital
reorganization in which the holders of the capital stock of the Company
outstanding immediately prior to such transaction continue to hold
(either
by the voting securities remaining outstanding or by being converted
into
voting securities of the surviving entity) more than 20% of the total
voting power represented by the voting securities of the Company,
or such
surviving entity, outstanding immediately after such transaction
shall not
constitute a Change in Control.
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7. Surrender
of Books and Records.
Employee acknowledges that all files, records, lists, designs, specifications,
formulas, books, products, and other materials owned and used by Corporation
in
connection with the conduct of its Business shall at all times remain the
property of Corporation, and that upon termination or expiration of this
Agreement or employment hereunder for any reason or upon demand by Corporation,
Employee will surrender to Corporation all such materials.
8. Waiver
of Breach.
The
waiver by either party of any breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach.
9. Severability.
The
provisions of this Agreement, particularly Paragraph 5, are hereby deemed by
the
parties to be severable, and the invalidity or unenforceability of any one
or
more of the provisions of this Agreement shall not affect the validity or
enforceability of the other provisions hereof.
10. Acknowledgment
of Reasonableness.
Employee has carefully read and considered the provisions of this Agreement
and
expressly agrees that the provisions hereof, including without limitation the
Restrictive Covenants, are fair and reasonable and reasonably required for
Corporation’s protection of its legitimate business interests, including,
without limitation, the confidential and proprietary information and trade
secrets of the Corporation, the substantial relationships between the
Corporation and its customers, officers, directors, employees, independent
contractors, agents and other personnel, and the goodwill of the Corporation.
In
the event that any provision of Paragraph 5 relating to the Restrictive Period,
the Territory and/or the scope of activity restricted shall be declared by
a
court of competent jurisdiction to exceed the maximum time period, geographical
area and/or scope of activity restricted that such court deems reasonable and
enforceable under applicable law, the time period, area of restriction and/or
scope of activity restricted that is held reasonable and enforceable by the
court shall thereafter be the Restrictive Period, Territory and/or scope of
activity restricted under this Agreement.
11. Addresses
for Notices.
Any
notice contemplated, required, or permitted under this Agreement shall be
sufficient if in writing and shall be deemed given when delivered personally
or
mailed by registered or certified mail, return receipt requested, to the
addresses listed below:
(a) To
Corporation:
Attn:
Global Axcess Board of Directors
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
6
(b) To
Employee:
Xxxxxx
XxXxxxx
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
or
such
subsequent address(es) as the respective parties may hereafter by written notice
designate.
12. Governing
Law, Forum.
This
Agreement shall in all respects be governed by and construed according to the
laws of Florida. Any suit or other proceeding arising out of or relating to
this
Agreement shall be instituted and maintained in the state or federal courts
sitting in Xxxxx County, Florida, absent written consent of the Corporation
to
the contrary. Employee expressly waives any objections to such jurisdiction
and
venue and irrevocably consents and submits to the personal and subject matter
jurisdiction of such courts in any such action or proceeding.
13. Compliance
with Code Section 409A. Notwithstanding the
above and anything in this Agreement to the contrary, (i) if at the
time of Employee’s termination of employment with the Corporation Employee is a
“specified employee” as defined in Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”) and the deferral of the commencement of any
payments or benefits otherwise payable hereunder as a result of such termination
of employment is necessary in order to prevent any accelerated or additional
tax
under Section 409A of the Code, then the Corporation will defer the commencement
of the payment of any such payments or benefits hereunder (without any reduction
in such payments or benefits ultimately paid or provided to Employee) until
the
date that is six (6) months following Employee’s termination of employment with
the Corporation (or the earliest date as is permitted under Section 409A of
the
Code) and (ii) if any other payments of money or other benefits due to Employee
hereunder could cause the application of an accelerated or additional tax under
Section 409A of the Code, such payments or other benefits shall be deferred
if
deferral will make such payment or other benefits compliant under Section 409A
of the Code, or otherwise such payment or other benefits shall be restructured,
to the extent possible, in a manner, determined by the Board, that does not
cause such an accelerated or additional tax.
14. Successors,
Heirs and Assigns.
The
rights and obligations of Employee under this Agreement shall inure to the
benefit of Corporation, its successors and assigns, and shall be binding upon
Employee and his respective successors, heirs and permitted assigns. Corporation
shall have the right to assign, transfer, or convey this Agreement to its
affiliated companies, successor entities, or assignees or transferees of
substantially all of Corporation’s business activities. This Agreement, being
personal in nature to Employee, may not be assigned by Employee without
Corporation’s prior written consent.
15. Entire
Agreement; Amendment.
Except
as otherwise provided in this Paragraph, this Agreement contains the entire
agreement of the parties hereto, and may not be changed or amended orally,
but
only by an agreement in writing expressly purporting to amend this Agreement
signed by both parties hereto; provided, however, to the extent the Restrictive
Covenants shall be determined to be unenforceable for any reason, then such
Restrictive Covenants shall be deemed to be in addition to, and not in lieu
of,
any similar obligations or restrictions to which Employee may be subject under
the terms of any prior agreement with Employer.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement under seal, as is their intention,
as of the day and year first above written.
By:
Xxxxxxx X. Xxxxxxxx
Title:
Chief Financial Officer
/s/
Xxxxxxx X. Xxxxxxxx
Signature
/s/
Xxxxxx XxXxxxx
Xxxxxx
XxXxxxx’x Signature
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Schedule
1
COMPENSATION
Salary
& Benefits
| 1. |
Employee
shall receive a base salary at the rate of $250,000 per year, payable
in
accordance with Corporation’s regular payroll practices as such practices
may exist from time to time.
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| 2. |
Employee
shall be eligible to participate in the Corporation’s benefits as outlined
in section 3 and section 4.3 of this Agreement under the terms and
conditions of this Agreement.
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