Amendment One to Employment Agreement By and Among Global Axcess Corp And George McQuain
Amendment
One
to
By and
Among
And
Xxxxxx
XxXxxxx
THIS AMENDMENT TO THE EMPLOYMENT
AGREEMENT (“the Amendment”) is made and entered into as of
this 21st day
October, 2010, by and among GLOBAL AXCESS CORP, a Nevada corporation (the “Corporation”), and
XXXXXX XXXXXXX, an individual residing in Jacksonville, Florida (the “Employee”).
WHEREAS, the Corporation and
the Employee are parties to the Employment Agreement (the “Agreement”) which was
made the 1st day of
July, 2008;
WHEREAS, the Corporation and
the Employee desire to amend certain provisions of the Agreement as hereinafter
provided;
WHEREAS, the Amendment shall
be deemed to have been integrated into the terms and conditions of the
Agreement;
NOW THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 4.3 of the Agreement
shall be modified to read as follows:
“4.3 In the event of a
termination of Employee’s employment hereunder without Cause by Corporation,
provided that Employee complies with the Restrictive Covenants contained herein,
Employee shall be entitled to receive salary continuation payments at Employee’s
base salary rate, in effect as of the date of Employee’s termination of
employment, less applicable tax withholding, payable in equal installments in
accordance with Corporation’s usual payroll practices (but no less than
monthly), over the following time period: (i) if the termination occurs during
the initial term, for the remaining portion of such initial term, or for
eighteen (18) months after the date of termination of Employee’s employment,
whichever is longer, or (ii) for any termination occurring after the initial
term, for eighteen (18) months 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 that Corporation is
paying at the time of termination of Employee’s employment 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. Except as provided below, such payments shall commence
on the first payroll payment date coincident with or next following Employee’s
termination of employment.
1
Notwithstanding
anything in this Agreement to the contrary, the payments described in this
Paragraph 4.3 shall not be paid or payable unless on or before the sixtieth
(60th) day
following Employee’s termination of employment, Employee has provided
Corporation with an executed general release of all claims arising out of or
related to Employee’s employment with Corporation, and such release is not
subject to revocation, in a form and manner satisfactory to Corporation (the
“Release
Agreement”), which shall be provided by Corporation to Employee within
ten (10) days of Employee’s termination of employment. Any payments
that become due and payable under this Paragraph 4.3 during this sixty (60) day
period shall be paid in a single lump sum on the sixtieth (60th) day
and all subsequent payments shall be paid in installments as described
above.”
Section 5.2(iv) of the
Agreement shall be modified to read as follows:
“(iv) compete with the
Corporation, its successors and assigns by engaging, directly or indirectly, in
the Business the Corporation is engaged in after the date of the expiration or
termination of this Agreement and as conducted or in a business substantially
similar to the Business the Corporation is engaged in after the date of the
expiration or termination of this Agreement within the “Territory,” as
hereinafter defined (“Restricted
Business”); or”
Section 6 (“Change of Control”) of the Agreement shall be
modified to read as follows:
“6. Change of Control. If there
is a Change of Control, as defined herein, and if within six (6) months of such
Change of Control (a) Employee’s base salary is reduced and (b) Employee’s job
responsibilities (as in effect during Employee’s employment with Corporation in
Jacksonville, Florida prior to the Change of Control) are diminished, Employee
may terminate his employment with Corporation within thirty (30) days of such
reduction in salary and diminution in job responsibilities. In
connection with such termination of employment, provided that Employee complies
with the Restrictive Covenants contained herein, Employee shall be entitled to
receive salary continuation payments at Employee’s base salary rate, in effect
as of Employee’s termination of employment, less applicable tax withholding,
payable in equal installments in accordance with Corporation’s usual payroll
practices (but no less than monthly), 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. Except as provided below, such payments shall
commence on the first payroll payment date coincident with or next following
Employee’s termination of employment.
2
Notwithstanding
anything in this Agreement to the contrary, the payments described in this
Paragraph 6 shall not be paid or payable unless on or before the sixtieth
(60th) day
following Employee’s termination of employment, Employee has provided
Corporation with an executed Release Agreement, which shall be provided by
Corporation to Employee within ten (10) days of Employee’s termination of
employment. Any payments that become due and payable under this
Paragraph 6 during this sixty (60) day period shall be paid in a single lump sum
on the sixtieth (60th) day
and all subsequent payments shall be paid in installments as described
above.
For
purposes of this Agreement, “Change of Control” shall mean the acquisition by
any individual, entity or group (within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (“Section 409A”)) (a “Person”) of
ownership of stock of Corporation that, together with stock held by such Person,
constitutes more than 50% of the total fair market value or total voting power
of the stock of Corporation. However, if any Person is considered to
own more than 50% of the total fair market value or total voting power of the
stock of Corporation, the acquisition of additional stock by the same Person is
not considered to cause a change in ownership of Corporation (or to cause a
change in the effective control of Corporation). An increase in the
percentage of stock owned by any one Person as a result of a transaction in
which Corporation acquires its stock in exchange for property will be treated as
an acquisition of stock for purposes of this paragraph. This
paragraph applies only when there is a transfer of stock of Corporation (or
issuance of stock of Corporation) and stock in Corporation remains outstanding
after the transaction.”
Section 13 (“Compliance with Code
Section 409A”) of the Agreement shall be modified to read as
follows:
“13. Compliance with Code Section
409A. It is intended that the terms of this Agreement,
including any ambiguous terms, be interpreted in a manner consistent with
Section 409A. It is also intended that, for all purposes,
“termination of employment” (or similar terms) as used herein shall mean
“separation from service” (within the meaning provided by Treasury Regulation
Section 1.409A-1(h)) in accordance with Treasury Regulation Section
1.409A-3(a)(1). Any provision that would cause this Agreement, or any
payment hereunder, to fail to satisfy Section 409A shall have no force or effect
until amended to comply with Section 409A, which amendment may be retroactive to
the extent permitted by Section 409A. The direct payment or
reimbursement of expenses permitted under this Agreement or otherwise shall be
made no later than the last day of Employee’s taxable year following the taxable
year in which such expense was incurred. Notwithstanding anything
herein to the contrary, in no event shall Corporation be liable to Employee for,
or with respect to, any taxes, penalties, or interest which may be imposed upon
you pursuant to Section 409A.
If it is
determined that (a) Employee is a “specified employee,” as defined in Section
409A(a)(2)(B)(i) and the regulations and other guidance promulgated thereunder,
and any elections made by Employee in accordance therewith, and (b) such
payments constitute a distribution of deferred compensation (within the meaning
of Treasury Regulation Section 1.409A-1(b)) upon separation from service (within
the meaning of Treasury Regulation Section 1.409A-1(h)), after taking into
account all available exemptions, then notwithstanding the timing of payment
provided in any other Paragraph of this Agreement, no payment, distribution, or
benefit under this Agreement that constitutes a distribution of deferred
compensation and that would otherwise be payable during the six (6) month period
after Employee’s termination of employment, will be made during such six (6)
month period, and any such payment, distribution or benefit will instead be paid
on the first business day after such six (6) month period.”
3
Except as
otherwise expressly amended by this Amendment, the Agreement is and shall
continue to be in full force and effect in accordance with its
terms. In the event of any inconsistency between the provisions of
this Amendment and those in the Agreement, the terms of this Amendment shall
control.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment this 21st day
of October, 2010.
By: Xxxxxxx
X. Xxxxxxxx
Title: Chief
Financial Officer
/s/
Xxxxxxx X.
Xxxxxxxx
Signature
XXXXXX
XXXXXXX
/s/
Xxxxxx
XxXxxxx
Signature
4
