CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective as of
___________, 2004 by and between Global Axcess Corp. (the "Company"), and Xxxx
X. Xxxxxx, Xx. ("Consultant").
Recitals
1. Effective simultaneously with this Agreement, the Company purchased from
The Xxxxxx Group and related affiliates substantially all of the assets of ATM
Network Services, Inc. d/b/a The Xxxxxx Group ("TBG") being utilized to conduct
the business of operation and sales of automated teller machines and point of
sale devices, and processing financial services transactions and related
business ("Business") for aggregate consideration of the value of approximately
seven million ($7,000,000) dollars under an appropriate Asset Purchase
Agreement.
2. Consultant was the controlling owner of The Xxxxxx Group at the time of
its sale of the above assets to the Company and received substantial benefits
from such sale.
3. As an important part of the Company's strategy to operate and further
develop the Business, the Company desires to contract for the exclusive services
of Consultant to assist the Company in the conduct of the Business, as well as
in the conduct of its other businesses, and Consultant is desirous of providing
such exclusive services, in accordance with the terms of this Agreement.
Terms and Conditions
NOW, THEREFORE, in consideration for the undertakings, promises, terms,
conditions and other good and valuable consideration as set forth herein, the
parties hereto agree as follows:
1. Engagement of Consultant. The Company hereby engages Consultant, and
Consultant hereby accepts such engagement, to perform consulting services
exclusively for the Company in accordance with the terms and conditions
contained herein. The parties acknowledge and agree that the term "Company" as
used herein shall include all affiliated companies of Global Axcess Corp., which
means companies controlling, controlled by, or under common control with, Global
Axcess Corp.
2. Duties of Consultant. Consultant shall be a business development advisor
to the Company exclusively during the term hereof and shall not perform any
business services for any other party relating to automated teller machines and
point of sale devices. In his capacity as an exclusive advisor to the Company,
he shall:
(a) Generally, assist the Company with a smooth and successful
transition of the Business from The Xxxxxx Group to the Company;
(b) Assist the Company with a smooth and successful transition of The
Xxxxxx Group customers to the Company including maintaining continuous
relationships with customers and promoting positive customer perceptions
regarding the transition to the Company;
(c) Assist the Company in the expansion of sites and services with
existing customers associated with The Xxxxxx Group assets and Business
purchased by the Company; and
(d) Assist the Company in developing new business opportunities,
relationships and customers for the Company.
(e) Assist the Company in developing new business opportunities and
relationships with potential customers that Consultant was and is in the process
of discussing and negotiating with prior to, and at the time of, the Asset
Purchase Agreement between the Company and TBG dated ____________________, 2004
including Speedy Stop and Town & Country Food Stores.
1
3. Cooperation with Company Officers. Consultant shall maintain regular
communication with the Company's officers and coordinate with the Company's
officers with respect to his activities pursuant to this Agreement.
4. Obligations of Company to Assist Consultant. To coordinate with and
assist Consultant in performing services hereunder, the Company shall assist
Consultant in the gathering of information and knowledge regarding the Company
and its operations to assist the Consultant in:
(a) Transitioning The Xxxxxx Group's operations into the Company's
operations;
(b) Introducing the Company and its affiliates to customers and
creating and maintaining a positive perception by customers;
(c) Expanding the products and services being provided to existing
company customers; and
(d) Developing new customers for the Company.
5. Compensation of Consultant.
(a) As payment for Consultant's services hereunder, the Company shall
execute and deliver to Consultant simultaneously with the effectiveness of this
Agreement the Company's Promissory Note ("Note") payable to Consultant in the
amount of $150,000 in the form of Exhibit A hereto.
(b) Payment of the Note shall be secured by a security interest in
certain equipment purchased by the Company from ATM Network Services, Inc. as
identified in the form of the Security Agreement set forth in Exhibit B hereto,
which Security Agreement shall grant the security interest contemplated by this
Section 5(b).
(c) The parties acknowledge that they have also entered into a
Confidentiality and Protection of Business Agreement simultaneously with this
Agreement under which Consultant has agreed to certain confidentiality
requirements and certain restrictions on his business activities to protect the
business of the Company. The parties hereby agree that if Consultant breaches
the above Confidentiality and Business Protection Agreement prior to the date
the Note is paid in full, then the unpaid balance of principle on the Note shall
immediately become null and void and be automatically cancelled, and no further
payments of unpaid principal or unpaid interest shall be owed or paid
thereunder.
6. Expense Reimbursement. As part of the Company's consulting compensation
to Consultant, the Company shall reimburse Consultant for the following
reasonable business expenses: service for one (1) cell phone, service for one
(1) home office phone, service for one (1) facsimile equipment, service for one
(1) internet connection, reasonable travel and entertainment expenses, auto
mileage reimbursement under IRS guidelines, and office supplies. Reimbursement
payments shall be made within thirty (30) days of the presentation to the
Company by the Consultant of a written reimbursement request together with
receipts or other documents reasonably requested by the Company to be submitted
monthly using the form set forth in Exhibit C hereto, with all appropriate
receipts attached.
7. Term and Termination.
(a) The term of this Agreement shall be for a period of three (3)
years from the effective date hereof, subject to termination as provided below.
2
(b) This Agreement may not be terminated during its term except that
the Company may terminate it "For Cause", as defined below, by written notice to
the Consultant clearly explaining the basis of the "For Cause" assertion.
(c) "For Cause" shall mean:
(i) Conviction of, or a plea of guilty or "nolo contendere", by
the party to (A) any felony, or (B) any misdemeanor reflecting upon the other
party's honesty or truthfulness;
(ii) Consultant has breached or negligently performed his/its
duties and obligations under this Agreement and such breach or negligence is not
corrected within ten (10) days after written notification;
(iii) Conduct by Consultant, either in connection with duties
under this Agreement or otherwise, which is reasonably recognized as fraudulent
conduct;
(iv) Material breach of any policy, rule or regulation of the
Company and such breach is not corrected within ten (10) days after written
notification;
(v) Consultant has failed to perform his duties to the Company as
provided for in this Agreement in a satisfactory manner, and, if such failure is
subject to cure, which failure is not cured within thirty (30) days after
written notice specifying the nature of such failure is delivered to Consultant;
and/or
(d) In the event of a termination of Consultant "For Cause",
Consultant shall be paid by Company only the accrued interest due and payable
under the Note up to the time of termination, and the Note shall otherwise be
null and void and cancelled. In addition except as set forth in section 5(c)
hereof, the Company shall pay Consultant a pro-rata portion of the principal of
the Note based on the number of days of the term prior to such termination as a
fraction of the total number of days and no further payments due thereunder.
8. Independent Contractor. The parties acknowledge and agree that
Consultant is an independent contractor and not an agent or employee of the
Company. As a consequence, Consultant shall determine the timing, methods and
techniques that in his opinion will best accomplish the performance of his
consulting services, subject to coordination with the Company as contemplated by
this Agreement and provided that such timing, methods and techniques shall be in
accordance with good and reputable business practices. Consultant acknowledges
and agrees that he shall be solely responsible for the determination and payment
of any federal or state income taxes or other obligations and expenses of his
consulting business, and he shall properly comply with the requirements of all
applicable tax laws.
9. General.
(a) This Agreement and the associated Note and Security Agreement
mentioned herein constitute the entire agreement between the parties relative to
the subject matter hereof, and this Agreement supersedes any and all prior
agreements and understandings between the parties.
(b) This Agreement is personal to Consultant, and he shall not assign
any of his rights or delegate any of his duties hereunder without the prior
written consent of the Company. Consultant shall not commute, encumber or
otherwise dispose of any prospective payments pursuant to the terms of this
Agreement. The Company shall not assign any of its rights or delegate any of its
duties hereunder without the prior written consent of Consultant.
(c) This Agreement shall inure to the benefit of and be binding upon
the parties and their respective heirs, legal representatives, successors and
permitted assigns.
3
(d) This Agreement can only be amended and modified in writing,
properly signed and delivered by the parties. This provision is specifically
intended to render invalid and void any alleged amendment or modification of
this Agreement based on an alleged oral agreement, usage of trade, course of
performance, or course of dealing not set forth in writing and signed by the
parties.
(e) If a court of competent jurisdiction determines that a clause,
sentence, subparagraph, or section of this Agreement is invalid, illegal, or
unenforceable, the offending provisions will be severed from this Agreement, and
the remainder of the Agreement will remain in full force and effect, unaffected
by the severance of the offending provision, and will be construed and enforced
as if the offending provision had never comprised a part of this Agreement.
(f) No failure on the part of any party to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver of such
right, nor shall any single or partial exercise of any such right or remedy by
such party preclude any other further exercise thereof or the exercise of any
other right or remedy.
(g) All rights and remedies hereunder are cumulative and are in
addition to all other rights and remedies provided by law, agreement or
otherwise.
(h) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
(i) Each party represents that it has reviewed this Agreement with
legal counsel and received any desired legal advice. This Agreement shall not be
construed or interpreted against any party on the basis that such party drafted
or authored a particular provision of, or the entirety of, this Agreement.
(j) This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida. The parties agree that jurisdiction and
venue for any litigation under this Agreement may only be in a state or federal
court in St. John's County, Florida. Each of the parties hereto expressly
consents to the jurisdiction of such courts and hereby waives any defense to the
venue of the aforementioned courts, including without limitation, any claim of
an inconvenient form.
(k) All notices, requests, demands and other communications required
by or permitted under this Agreement shall be in writing and shall be delivered
by hand, by courier services, or sent by registered or certified mail, postage
prepaid, to the parties at their respective addresses set forth below the
signature of such party below, or at such other address as such party may
designate by written communication to the other party. Notice shall be effective
upon delivery to the address for notice pursuant to the above. Each party may
change its address for notice by written notice to the other party in compliance
with this section.
4
EXECUTED effective ______________, 2004.
CONSULTANT: COMPANY:
------------------------------------- By:----------------------------------
(Signature) (Signature)
Print Name and Address: Name and Title:
------------------------------------- -------------------------------------
------------------------------------- Address for Notice:
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
-------------------------------------
5
EXHBIT C
Global Axcess Corp Company: ___ NMS ___ ATC Expense Report
000 Xxxxx Xxxxx Xxxx Xxxxx ___ GLXS ___ ATC-XX
Xxxxx Xxxxx Xxxxx, XX 00000 ___ EFTI ___ EP&T
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Employee: Dates Covered:
Name:----------------------------- Position:---------------------- From:-------------------
Department:----------------------------- Manager: ---------------------- To:---------------------
------------------------------------------------------------------------------------------------------------------------------------
Date Account # Description Hotel Transport Fuel Meals Phone Entertain Other Total
------------------------------------------------------------------------------------------------------------------------------------
# of miles (from mileage
log) -
mileage reimbursement
(automatically calcs) -
- - - - - - -
----------------------------------------------------------------------------------------
Sub-total -
Travel Advances -
TOTAL DUE -
--------------------- ------------------------------------------------------
Approved By: Notes:
Current Mileage reimbursement rate is $0.3650 per mile
--------------------- ------------------------------------------------------
6
