SEPARATION AGREEMENT AND RELEASE
This
Separation Agreement and Release (“Agreement”), dated as of October 10, 2006, by
and between the parties hereto, Xxxxxxx X. Xxxxx (“Employee”) and Global Axcess
Corp (“Employer” or “Company”).
RECITALS
On
or
about June 25, 2004, the Company and the Employee entered into that certain
Employment Agreement (the “Employment Agreement”).
The
parties desire to terminate the Employment Agreement and otherwise resolve
amicably all issues arising out of the cessation of Employees’ employment, and
to memorialize their Agreement. Therefore, in consideration of the mutual
covenants and promises set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties expressly, knowingly and voluntarily agree as follows:
AGREEMENTS
1. The
foregoing recitals are incorporated by reference and are acknowledged
to be true
and correct.
2. In
exchange for the promises made by Employer contained in this Agreement,
Employee
agrees as follows:
a. Employee's
last day of
employment is established as Saturday, September 30, 2006 (the “Effective
Date”). On the Effective Date Employee shall cease being an employee, officer
and director of Employer.
b. Employee,
for Employee
and Employee’s heirs, assigns, executors, successors, agents, attorneys and
representatives, and any person acting by, through, on behalf of, or
under
Employee hereby covenants not to xxx, and irrevocably and unconditionally
releases Employer, and all of its past, present and future directors,
shareholders, officers, agents, employees and current and former affiliated
parent and/or subsidiary business entities, (collectively “Releasees”), and each
of them, from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action,
suits,
rights, demands, costs, losses, debts, and expenses (including attorneys’ fees
and costs actually incurred) of any nature whatsoever, known or unknown
that
Employee ever had, or now has against the Releasees based on or arising
out of
any financial obligations Employer owes to Employee by virtue of any
agreement
between the parties therefor.
c. For
a reasonable period
of time in connection with his separation from employment, Employee agrees
to
cooperate with the Employer in connection with the transition of various
activities as reasonably requested by the Employer. Such activities shall
include, but will not be limited to, the transition of any and all of
Employee’s
files (including both hardcopy and electronic information) to the Employer’s
CEO.
d. Employee
warrants that
while in the employ of the Employer, Employee did not misrepresent the
Employer
or deal with any third party in bad faith. Provided, however, that in
the event
a third party makes any claim or assertion that Employee misrepresented
the
Employer or dealt in bad faith, such claim or assertion shall not serve
to
relieve Employer of its obligations under this Agreement. Employee further
warrants that Employee has not incurred any expenses or obligations or
liabilities on behalf of the Employer which have not been disclosed to
the
Employer at the signing of this Agreement.
e. Employee
recognizes that
he is deemed an “insider” of Employer and that such status shall continue until
90 days from the Effective Date (and thereafter if Employee gains access
to
non-public information concerning Employer). During the ninety (90) days
of
Employee’s insider status after the Effective Date, the Employee shall not trade
in Company Securities. During the next ninety (90) day period, the Employee
shall be permitted to sell up to 100,000 shares of Company securities.
Provided,
however, that in the event the Employer fails to make any payment required
under
this Agreement, the foregoing restrictions on Employee’s right to trade in
Company securities are void and of no force and effect. In the event
Employee
trades in Company securities during such period, Employee shall file
all SEC
forms applicable to any such trading activities.
3. Employee
agrees that during his employment with Employer, he had access to and
was
exposed to the Employer’s, trade secrets (as that term is defined in Section
688.002(4) of the 2005 Florida Statutes) and confidential business and
professional information, including, but not limited to, Employer’s policies,
organization, management, marketing, finances, future plans, budgets,
strategies, promotional materials, pricing, profit margin, product development,
employee skills and compensation, customer or client lists and contacts,
the
goodwill associated with the Employer’s customers or clients and other
confidential business information that does not qualify as trade secrets.
Employee acknowledges and agrees that the release of any such trade secrets
or
confidential business or professional information will irreparably harm
the
Employer and that the Employer’s trade secrets and confidential business and
professional information are legitimate business interests of the Employer.
In
exchange for the Employer’s covenants and promises, and other good and valuable
consideration in this Agreement, Employee agrees to be subject to the
following
Non-Competition, Non-Solicitation, and Non-Disclosure provisions.
a. Employee
agrees that for
sixty (60) months following his termination from employment, he will
NOT,
anywhere in the world:
(i) directly
or indirectly,
as either an owner, operator, agent, employee, independent contractor,
investor,
advisor, consultant, partner, officer, director, shareholder or in any
other
capacity, engage, participate or invest in a business which competes
with the
Employer or its affiliated or related entities with the exception of
Cash Axcess
Corporation (Proprietary) Limited (“CAC”) in which the Employer agrees to allow
Employee to provide consulting services to CAC until Employer has received
all
monies due to Employer from the sale of Employer’s ownership in CAC to Coin
Security Group (Proprietary) Limited estimated to be in April 2007;
and/or
(ii) directly
or indirectly
solicit, entice, encourage or induce any employee of the Employer or
its
affiliated or related entities or any person, who at any time within
one (1)
year prior to the termination of Employee’s employment shall have been an
employee of the Employer or its affiliated or related entities, to: (A)
terminate or negatively alter his or her relationship with the Employer;
(B) to
become employed by or associated with any person or company other than
Employer;
(C) solicit the business of any current or former client or customer
of the
Employer (other than on behalf of the Employer); or (D) induce any former
or
current supplier, vendor, consultant, or independent contractor of the
Employer
to terminate or negatively alter his, her, or its relationship with the
Employer; and/or
(iii) directly
or indirectly,
reveal, disclose, publish, use or direct or authorize another to reveal,
disclose, publish or use Employer’s or its affiliated or related entities’ trade
secrets or confidential business or professional information without
the prior
written consent of Employer.
(iv) Nothing
herein contained,
however, shall restrict Employee from overseeing personal and family
investments, including, without limitation, any investments in not more
than
three percent (3%) of the voting securities in any business which competes
with
the Employer or its affiliated or related entities whose stock is listed
on a
national securities exchange or is actively traded on the NASDAQ so long
as in
connection with such investments Employee does not render services, directly
or
indirectly, to a business that competes with the Employer or its affiliated
or
related entities. Additionally, nothing contained herein shall preclude
the
Employee from selling and processing debit cards anywhere in the world,
so long
as Employee does not serve as an officer, director, shareholder or consultant
in
Electronic Payment and Transfer Corp., the Company’s former
subsidiary.
b. Employee
agrees that all
records, files, data, documents and the like relating to the Employer
shall be
and remain the sole property of the Employer. Upon termination of Employee’s
employment with Employer, Employee shall not remove from the Employer’s premises
or retain any of the materials described in this Section 3.b without
the prior
written consent of the Employer, and such materials in Employee’s possession
shall be delivered promptly to the Employer.
c. Employee
acknowledges
that the legitimate business interests of the Employer are of a special,
unique
and extraordinary character, that the restrictions contained in this
Section 3
are necessary to protect such legitimate business interests and that
damages at
law would be an inadequate remedy. Employee agrees that the Employer
shall have
the right to enforce this Agreement and any of its provisions by injunction,
specific performance or other equitable relief, without the need to show
actual
damages, without bond and that the rights and remedies of the Employer
under
this Agreement are cumulative and not exclusive of any other right, power
or
remedy which the Employer may have under any other agreement or by law.
In the
event Employer successfully obtains a preliminary or temporary injunction
against Employee for any violation of this Section 3, the Employer shall
be
relieved of any obligation to pay Employee the sums required under this
Agreement.
d. In
the event that a court
of competent jurisdiction shall determine that any provision of this
Section 3
is invalid or more restrictive than permitted under the governing law
of such
jurisdiction, then only as to enforcement of this Section 3 within the
jurisdiction of such court, such provision shall be interpreted and enforced
as
if it provided for the maximum restriction permitted under such governing
law.
4. Employee
agrees to
provide, free of charge, up to twenty (20) hours per month of consulting
and/or
advisory assistance to the Employer as requested by the Employer for
a period of
six (6) months following the Effective Date. Such consulting and/or advisory
assistance may be performed by Employee at Employee’s place of
business.
5. The
Employer agrees as
follows:
a. Contemporaneously
with the execution of this Agreement, Employer shall pay to Employee accrued
Paid Time Off (“PTO”) of $42,301.14
(less applicable withholdings, FICA, FUTA and other amounts customarily
withheld
from employees of Employer) plus his regular bi-weekly payroll deposit
for work
through September 30, 2006.
b. Employer
will pay
Employee approximately 16 months of compensation over a 24 month period
as
follows: commencing October 31, 2006 and on the last day of each of the
following 23 months thereafter (the “Payment Term”) the Employer shall pay
Employee the sum of $15,699.04 (the “Severance Payment”).
c. At
such
time as the Company receives payment from Coin Security Group in connection
with
the sale of the Company’s remaining ownership interest in Cash Axcess
Corporation, and the balance owed to Employee is equal to or greater
than the
sum of $57,698.86, the Employer shall pay to Employee a lump sum in the
amount
of $57,698.86, and the remaining balance of the Severance Payment due
Employee
after such lump sum payment shall be paid to Employee in equal installments
over
the remaining Payment Term. In the event the balance of the Severance
Payment is
less than $57,698.86 at the time the foregoing payment is received from
Coin
Security Group, then the balance of the Severance Payment shall be paid
to
Employee in full with one lump sum payment.
d. The
Severance Payment set forth in Section 5.b. may be prepaid at any time
by
Employer in its sole discretion if Employer determines that it has the
cash
resources to make such prepayment.
e. In
the
event of a “Change in Control” of Employer the Employer’s assets, the entire
remaining balance of the Severance Payment owed to Employee shall be
paid within
fifteen (15) business days after such event takes place. For purposes
of this
Agreement, “Change in Control” shall mean (A) any merger or consolidation of the
Employer with another entity, whether or not the Employer is the continuing
or
surviving entity, that has been voted on and approved by a majority of
the
Employer’s shareholders and in which a majority of the Employer’s voting capital
stock is transferred to holders different from persons or their affiliates
who
held the stock immediately prior to such transaction or (B) any sale
of all or
substantially all of the Employer’s assets to another entity or person that has
been voted on and approved by a majority of the Employer’s shareholders and of
which a majority of the capital stock is held by holders different from
persons
or their affiliates who hold voting capital stock of the Employer.
f. If
Employer fails to make a payment when due pursuant to Section 5 a, b,
c and e,
then upon written notification of such default from Employee to the Employer,
the Company shall have thirty (30) days to cure the default. If the Employer
does not cure the default within the 30-day period then the entire remaining
balance of the Severance Payment owed to Employee shall become due and
payable.
g. Employer
will pay for the reasonable attorneys’ fees of Employee to have an attorney of
his choice review the Employment Agreement. Such attorney will also be
the same
attorney used by Xx. Xxxxx Xxxx regarding Xx. Xxxx’x separation agreement and
release.
h. For
those
expenses not previously reimbursed pursuant to Section 5a hereof, within
ten
days of the Effective Date Employer will reimburse Employee for any remaining
customary business expenses incurred on behalf of, and subject to the
sole
discretion of, Employer after submission of appropriate supporting
documentation.
i. Employer
will pay the lesser of: (i) $6,600 or (i) the maximum permitted by law
in
matching dollars as per the Company’s 401K Plan for contributions made after the
Effective Date but before the end of 2006.
j. During
the period beginning on the Effective Date and ending March 31, 2008
Employer
will provide Employee with healthcare benefits for himself and his family
to the
extent that that is permissible under its healthcare plans adopted for
its
employees as a group; and to the extent that such provision is not permissible,
Employer will pay Employee a monthly dollar amount equal to the premium
it would
otherwise pay on behalf of Employee. As of the Effective Date such medical
benefits premiums are estimated to be equal to approximately $786 per
month.
k. Employee
will be allowed to keep the following Company-owned assets: (i) laptop
computer
used by Employee as of the Effective Date, (ii) mobile phone used by
Employee as
of the Effective Date, (iii) pictures displayed at the Employer’s corporate
office at Ponte Vedra Beach, Florida that were taken by Employee. Employee
agrees to provide Employer with an electronic copy of all Employer files
from
the Employee’s laptop computer and subsequently remove said files from the
laptop computer.
6. The
parties agree that
this Agreement is undertaken with mutual respect and in the best interest
of
both parties. The parties agree that this Agreement shall not constitute
and
shall not be construed as an admission of liability or wrongdoing by
either
party.
7. Either
party’s failure to
enforce any provision(s) of this Agreement shall not in any way be construed
as
a waiver of that provision(s) or prevent that party thereafter from enforcing
each and every provision of this Agreement.
8. If
any of the provisions
contained in any paragraph herein are found null, void, or inoperative,
for any
reason, the remaining provisions shall remain in full force and
effect.
9. The
parties agree that
they will not make any untruthful oral or written statement or take any
other
action which disparages or criticizes the other party hereto, or Employer’s or
its affiliated or related entities’ administration, employees, management,
officers, shareholders or directors. The parties agree that in response
to any
third party inquiries that the parties may state such separation was
on friendly
terms. In the event any press release is issued relating to Employee’s
termination of employment with Employer, the parties shall mutually agree
and
approve the language of such release.
10. Employee
and Employer
acknowledge that they have read each of the sections herein and fully
understand
the terms, nature, and effect of this Agreement, which they voluntarily
execute
in good faith and deem to be a fair and equitable settlement of this
matter.
11. Except
as otherwise
provided in Section 5g, Employer and Employee will each bear their own
costs and
expenses incurred in the preparation, review and execution of this
Agreement.
12. This
Agreement supersedes
any prior agreement or understanding between the parties, written or
oral, and
constitutes a complete resolution of all claims by Employee against Releasees.
There may be no modification of this Agreement except in writing signed
by the
parties. The Employment Agreement and any
other
employment agreements and/or
modifications or amendments thereto are
hereby
deemed terminated and of no force or effect. Notwithstanding the foregoing
or
anything else in this
Agreement to the contrary, in the event the non-competition and non-solicitation
agreements contained in Section 3 of this Agreement are determined to
be
unenforceable, the non-competition and non-solicitation obligations in
the
Employment Agreement shall also continue in full force and effect. Moreover,
Employee agrees that Employee has the obligation to and will maintain
and
protect the confidentiality of Confidential Information (as defined in
said
Employment Agreement) following the date of this Agreement. Under no
circumstances and at no time shall Employee, directly or indirectly,
disclose,
divulge, render or offer any knowledge or information with respect to
any
Confidential Information. Employee acknowledges and agrees that the unauthorized
use or disclosure of any of Employer's Confidential Information, obtained
by
Employee during the course of employment with Employer constitutes unfair
competition. Employee therefore promises and agrees not to engage in
any unfair
competition with Employer after separation from employment.
13. All
notices, consents and
other communications under this Agreement shall be in writing and shall
be
deemed to have been duly given when (a) delivered by hand, (b) sent by
telex or telecopier (with receipt confirmed), provided that a copy is
mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by Express Mail, Federal Express or other express
delivery
service (receipt requested), in each case to the appropriate addresses
and
telecopier numbers set forth below (or to such other addresses and telecopier
numbers as a party may designate by notice to the other parties):
|
For
Employee:
Xxxxxxx
X. Xxxxx
Address
on file with the Human Resource department of Employer
(Personal
& Confidential)
|
|
For
Employer:
Attn:
Chief Executive Officer
000
Xxxxx Xxxxx Xxxx Xxxxx
Xxxxx
000
Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Fax
Number: (000) 000-0000
(Personal
& Confidential)
|
14. This
Agreement may be
filed as a material agreement with appropriate regulatory authorities.
Any press
release relating to this Agreement or the termination of Employee shall
be
furnished to Employee for his review and approval prior to its release
to the
public.
15. Employee
agrees to
cooperate with Employer in a reasonable way with respect to matters arising
prior to or subsequent to the signing of this Agreement with respect
to which
Employee had some involvement or knowledge prior to the Effective Date,
it being
agreed that any cooperation or consultation shall not unreasonably interfere
with Employee’s subsequent employment, if any.
16. Employee
agrees that all
correspondence, drawings, reports, ideas, manuals, letters, data, notes,
analyses, sales information, personnel information, notebooks, reports,
charts,
programs, proposals, legal agreements, files, memoranda, records, and
any other
documents concerning the Employer’s customers or products or processes, whether
or not prepared by and in the course of employment, alone or in conjunction
with
others, together with any credit cards and other physical and personal
property
which Employee received from the Employer or which Employee generated
in
connection with his employment by the Employer, which are in Employee’s
possession, custody or control, are the sole property of the Employer.
Employee
further warrants that he has turned over, or shall promptly return to
the
Employer, any such documents or property in his possession, custody or
control.
17. Nothing
in this Agreement
shall be interpreted as depriving Employee of the protections he is entitled
to
under Employer’s insurance policies including, but not limited to, its D&O
insurance policy and pursuant to Employer’s Articles of Incorporation and
By-Laws that were in effect on the Effective Date, it being agreed that
such
protection shall remain in effect hereafter for the benefit of Employee
to the
same extent as other officers and/or directors of Employer.
18. Employee
acknowledges
that any of Employer’s and/or its affiliates’ or related entities’ business
opportunities which were identified by, known by, or otherwise created
by
Employee are the property of the Employer and/or its affiliated or related
entities.
19. The
parties affirm that
this Agreement is the product of negotiation and it shall not be construed
against either party on the basis of sole authorship.
20. No
amendment or
modification of this Agreement requires the consent of any individual,
partnership, corporation or other entity not a party to this Agreement.
Nothing
in this Agreement, express or implied, is intended to confer upon any
third
person any rights or remedies under or by reason of this Agreement. It
is
expressly understood and agreed that Sections 3, 9, 13, 15, 16 and 17
shall
survive any termination of this Agreement.
21. This
Agreement may be
executed in several counterparts with the same effect as if all parties
hereto
had signed the same document. All counterparts shall be construed together
and
shall constitute one agreement.
22. This
Agreement and the
rights and obligations hereunder shall be governed by, and construed
and
interpreted, in all respects, in accordance with the laws of the State
of
Florida. In any action to enforce the terms of this Agreement, jurisdiction
and
venue shall lie exclusively in the United States District Court, Middle
District
of Florida, Jacksonville Division, or the Seventh Judicial Circuit Court
in St.
Xxxxx County, Florida. The prevailing party in any action brought to
enforce the
terms of this Agreement shall be entitled to an award of reasonable attorney’s
fees, costs
and
expenses.
23. Employee
acknowledges
that Employee has been advised by Employer to seek legal advice regarding
the
effect of this Agreement including the release in Section 2. prior to
signing
it. Employee has had twenty-one (21) days from the Effective Date, to
consider
this Agreement before signing it. Employee understands that he may use
as much
of this twenty-one (21) day period as he wishes before signing the Agreement.
Employee further understands that he may revoke this Agreement within
seven (7)
calendar days after signing it. Revocation must be made by delivering
written
notice of revocation as provided in Section 13. The seven (7) day revocation
period, during which the Employee may revoke his acceptance of the Agreement,
begins on the day he executes this Agreement. Employee understands that
he may
not waive the seven (7) day revocation period. By signing this Agreement,
Employee states that he has received advice of counsel, read it, understands
it,
knows that he is giving up important rights, agrees with everything in
it, and
has signed it knowingly and voluntarily. Employee agrees that Employer
shall be
under no obligation whatsoever to provide any of the benefits in Section
5. or
elsewhere herein until after the expiration of the seven (7) days revocation
period.
IN
WITNESS WHEREOF, the parties have executed this Agreement in counterparts
as of
the day and year first written above.
| GLOBAL AXCESS CORP | ||
| Xxxxxxx X. Xxxxx | ||
| By: | ||
| Its: |
