SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and Release
(“Agreement”), dated as of October 10, 2006, by and
between the parties hereto, Michael J. Dodak
(“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 sue, 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
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