SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (“Agreement”), dated as of October 10, 2006, by and between the parties hereto, David Fann (“Employee”) and Global Axcess Corp (“Employer” or “Company”).
On or about May 17, 2005, 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:
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; 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.