Unassociated Document


    Exhibit
      10.1

     

     

    EMPLOYMENT
      AGREEMENT

    


    GLOBAL
      AXCESS CORP, a Nevada corporation with its principal office in Jacksonville,
      Florida (the “Corporation”)
      and
      George McQuain, an individual residing in Jacksonville, Florida, (the
“Employee”)
      have,
      as of this 1st
      day of
      July, 2008, in consideration of the mutual promises and covenants of the
      parties, together with other valuable consideration, the receipt and legal
      sufficiency of which are hereby acknowledged, Corporation and Employee have
      agreed as follows:

    AGREEMENT

    


    In
      consideration of the mutual promises and covenants of the parties, together
      with
      other valuable consideration, the receipt and legal sufficiency of which are
      hereby acknowledged, Corporation and Employee have agreed as
      follows:

    


    1.    Employment.
      Corporation hereby employs Employee as President and Chief Executive Officer
      of
      the Corporation and Employee hereby accepts employment by the Corporation upon
      the terms and conditions of this Agreement. The
      parties acknowledge and agree that this Agreement materially enhances the terms
      and conditions of Employee’s existing employment relationship with Employer, and
      that no breach or interruption in the employment or service by Employee shall
      be
      deemed to have occurred as a result of the Corporation and Employee entering
      into this Agreement.

    


    2.    Duties.
      Employee shall serve as Chief Executive Officer. Employee shall perform such
      duties as may be reasonably required by the Board of Directors, the Chairman
      of
      Corporation, or their designee from time to time. Changes in or additions to
      Employee’s duties or title(s) under this Agreement are not to be accompanied by
      additional compensation unless expressly agreed to by Corporation. During the
      term of this Agreement, Employee agrees to serve Corporation faithfully and
      to
      devote substantially all of Employee’s business time, attention and energies to
      the business of Corporation and to the proper and timely discharge of Employee’s
      duties. Employee represents and warrants that Employee is not subject to any
      agreement or contract with any person or entity that will in any manner prevent
      Employee from performing any of Employee’s duties under this Agreement. Employee
      further represents and warrants that Employee has not used or disclosed and
      will
      not use or disclose in the scope of Employee’s employment any confidential,
      proprietary and/or trade secret materials, documents or information that
      Employee obtained from a former employer or one to whom Employee may owe any
      obligation of confidentiality or nondisclosure. 

    


    3.    Remuneration
      and Fringe Benefits.

     

    3.1  As
      full
      and complete remuneration for all personal services rendered as an employee
      pursuant to Paragraph 2 hereof, for so long as Employee is employed hereunder
      by
      Corporation, Employee shall receive the following:

    


    3.1.1 Initial
      compensation as set forth on Schedule 1 attached hereto. Such compensation
      may
      be adjusted from time to time by Corporation following notice to
      Employee.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    3.1.2 Such
      applicable fringe benefits as may be provided by Corporation from time to time;
      provided Employee is otherwise eligible and desires to participate; and provided
      further, that Corporation shall not be obligated hereby to implement any
      benefits not presently in existence or to continue to maintain any benefits
      presently in existence or to provide special benefits to Employee.

    


    3.1.3 Vacation
      each year with pay in accordance with Corporation policy.

    


    3.1.4 Reimbursement
      for all ordinary, necessary and reasonable business expenses, including without
      limitation travel expenses, incurred by Employee in accordance with Corporation
      policy in effect from time to time and in connection with the performance of
      Employee’s duties pursuant to Paragraph 2 hereof. Reimbursement of such expenses
      shall be made after Employee presents appropriate written vouchers, bills,
      reports or other substantiation for such expenses in form acceptable to the
      Internal Revenue Service and in compliance with Corporation’s policy.


    


    4.    Term
      and Termination.

    


    4.1  The
      initial term of this Agreement and Employee’s employment hereunder shall be for
      a period of one (1) year, and shall commence effective July 1, 2008 and shall
      expire at midnight on July 1, 2009. Absent a termination or notice of
      termination as provided herein, beginning on the first anniversary of this
      Agreement and at the end of each succeeding calendar year, the term shall
      automatically extend for an additional one (1) year on the same terms and
      conditions contained herein.

    


    4.2  Notwithstanding
      the provisions of paragraph 4.1, this Agreement and Employee’s employment
      hereunder may be terminated as follows:

    


    4.2.1  By
      the
      Corporation at any time, without notice and with immediate effect, for Cause.
      “Cause”
means:
      

    


    (i)  Willful
      failure of Employee to substantially comply with reasonable written directives
      of Corporation’s Board of Directors or its designee.

    


    (ii)  Any
      of
      the following actions by Employee, if in the judgment of Corporation’s Board of
      Directors or its designee such actions are materially injurious to
      Corporation:

    


    (a)  actions
      involving moral turpitude; or

    


    (b)  illegal
      use of controlled substances. 

    


    4.2.2  By
      the
      Board of Directors of the Corporation, upon notice to the Employee of
      termination without Cause.

    


    4.2.3  
      By the
      Employee for any reason.

    


    
      
         

      

      
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    4.3  In
      the
      event of a termination of Employee’s employment hereunder without Cause by the
      Corporation, and provided Employee complies with the Restrictive Covenants
      and
      signs a Release Agreement provided at the time by the Corporation, Employee
      shall be entitled to receive the Employee’s base salary payable in installments
      in accordance with the Corporation’s usual payroll practices 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.

    


    4.4  The
      provisions of Subparagraph 4.3 and Paragraph 5 of this Agreement shall survive
      termination or expiration of this Agreement or employment hereunder for any
      reason. Except as provided in Paragraph 4.3, termination of employment shall
      constitute termination of Corporation’s obligations under Paragraph 3 hereof,
      effective immediately upon termination of employment.

    


    5.    Restrictive
      Covenants.
      For
      purposes of this Agreement, “Restrictive
      Covenants”
mean
      the provisions of this Paragraph 5. It is stipulated and agreed that Corporation
      is engaged in the business of providing ATM services (such business, together
      with any other lines of business in which the Corporation becomes engaged during
      the term of this Agreement, being referred to herein as the “Business”).
      It is
      further stipulated and agreed that as a result of Employee’s employment by the
      Corporation, Employee will have access to valuable, highly confidential,
      privileged, and proprietary information relating to Corporation’s Business,
      including, without limitation, existing and future equipment information,
      customer lists, identities of distributors and distributorships, sales methods
      and techniques, costs and costing methods, pricing techniques and strategies,
      sales agreements with customers, profits and product line profitability
      information, unpublished present and future marketing strategies and promotional
      programs, and other information regarded by Corporation as proprietary and
      confidential (the “Confidential
      Information”).
      It is
      further acknowledged that unauthorized use or disclosure by Employee of
      Confidential Information would seriously damage Corporation in its Business.
      

    


    In
      consideration of the provisions of this Paragraph 5, the term of employment
      granted to Employee in Paragraph 4 of this Agreement and the payments and
      benefits referred to in Paragraphs 3 and 4.3 hereof, which Employee acknowledges
      are legally sufficient to support enforceability by the Corporation of the
      Restrictive Covenants against Employee, Employee agrees as follows:

    


    5.1  During
      the term of this Agreement and after its termination or expiration for any
      reason, Employee will not, without Corporation’s prior written consent, use,
      divulge, disclose, furnish, or make accessible to any third person, company,
      or
      other entity any aspect of Confidential Information (other than as required
      in
      the ordinary discharge of Employee’s duties hereunder).

    


    
      
         

      

      
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    5.2  During
      the term of this Agreement and for a period of one year and six months after
      the
      date of the expiration or termination of this Agreement for any reason (the
      “Restrictive
      Period”),
      Employee shall not directly or indirectly:

    


    (i)  employ,
      or solicit the employment of, any person who at any time during the twelve (12)
      calendar months immediately preceding the termination or expiration of this
      Agreement was employed by Corporation; 

    


    (ii)  provide
      or solicit the provision of products or services, similar to those provided
      by
      Corporation, to any person or entity who purchased or leased products or
      services from Corporation at any time during the twelve (12) calendar months
      immediately preceding the termination or expiration of this Agreement for any
      reason and for or with whom Employee had contact, responsibility or access
      to
      Confidential Information related to such person or entity; provided, however,
      the restrictions of this subsection (ii) shall be limited in scope to the
“Territory” (as defined below) and to any office, store or other place of
      business in which, or in connection with which, Employee has had business
      contact with such persons or entities during the twelve (12) calendar months
      immediately preceding the termination or expiration of this Agreement for any
      reason;

    


    (iii)  interfere
      or attempt to interfere with the terms or other aspects of the relationship
      between Corporation and any person or entity from whom Corporation has purchased
      equipment, supplies or inventory at any time during the twelve (12) calendar
      months immediately preceding the termination or expiration of this Agreement
      and
      for or with whom Employee had contact, responsibility or access to Confidential
      Information related to such person or entity; 

    


    (iv)  compete
      with the Corporation, its successors and assigns by engaging, directly or
      indirectly, in the Business as conducted or in a business substantially similar
      to the Business within the “Territory,” as hereinafter defined; or 

    


    (v)  provide
      information to, solicit or sell for, organize or own any interest in (either
      directly or through any parent, affiliate, or subsidiary corporation,
      partnership, or other entity), or become employed or engaged by, or act as
      agent
      for any person, corporation, or other entity that is directly or indirectly
      engaged in a business in the “Territory”, as hereinafter defined, which is
      substantially similar to the Business as conducted by or competitive with
      Corporation’s Business; provided, however, that nothing herein shall preclude
      the Employee from holding not more than one percent (1%) of the outstanding
      shares of any publicly held company which may be so engaged in a trade or
      business identical or similar to the Business of the Corporation. 

    


    As
      used
      herein, the “Territory”
means
      any state that Corporation did business within the last twelve (12) months
      of
      Employee’s employment and Employee had business contact with such persons or
      entities during the twelve (12) calendar months immediately preceding the
      termination or expiration of this Agreement for any reason.

    


    
      
         

      

      
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    5.3  In
      the
      event of a breach or threatened breach by Employee of any of the Restrictive
      Covenants contained in this Paragraph 5, Corporation, in addition to and not
      in
      derogation of any other remedies it may have, shall be entitled to any or all
      of
      the following remedies:

    


    5.3.1  It
      is
      stipulated that a breach by Employee of the Restrictive Covenants would cause
      irreparable damage to Corporation; Corporation, in addition to any other rights
      or remedies which Corporation may have, shall be entitled to an injunction
      restraining Employee from violating or continuing any violation of such
      Restrictive Covenants; such right to obtain injunctive relief may be exercised,
      at the option of Corporation, concurrently with, prior to, after, or in lieu
      of,
      the exercise of any other rights or remedies which the Corporation may have
      as a
      result of any such breach or threatened breach;

    


    5.3.2  Employee
      agrees that upon breach of any of the Restrictive Covenants, Corporation shall
      be entitled to an accounting and repayment of all profits, royalties,
      compensation, and/or other benefits that Employee directly or indirectly has
      realized or may realize as a result of, or in connection with, any such
      breach.

    


    5.3.3  Employee
      agrees that the Restrictive Period shall not include any period of time in
      which
      Employee is in violation of the Restrictive Covenants.

    


    6.    Change
      of Control.
      If there
      is a change of control (defined as a change in the ownership of the Corporation
      and Employee is not kept at the same salary and not permitted to retain the
      same
      job responsibilities he had in Jacksonville, Florida prior to the change in
      ownership), then Employee may resign his position and provided Employee complies
      with the Restrictive Covenants and signs a Release Agreement provided at the
      time by the Corporation, Employee shall be entitled to receive the Employee’s
      base salary payable in installments in accordance with the Corporation’s usual
      payroll practices 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

    


    
      	 	
              (a)

            	
              “Change
                of Control” shall mean a transaction consisting of a sale of all or
                substantially all of the Company’s assets, or a merger, consolidation or
                other capital reorganization of the Company with or into another
                entity;
                provided however that a merger, consolidation or other capital
                reorganization in which the holders of the capital stock of the Company
                outstanding immediately prior to such transaction continue to hold
                (either
                by the voting securities remaining outstanding or by being converted
                into
                voting securities of the surviving entity) more than 20% of the total
                voting power represented by the voting securities of the Company,
                or such
                surviving entity, outstanding immediately after such transaction
                shall not
                constitute a Change in Control.

            


    

    


    
      
         

      

      
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    7.    Surrender
      of Books and Records.
      Employee acknowledges that all files, records, lists, designs, specifications,
      formulas, books, products, and other materials owned and used by Corporation
      in
      connection with the conduct of its Business shall at all times remain the
      property of Corporation, and that upon termination or expiration of this
      Agreement or employment hereunder for any reason or upon demand by Corporation,
      Employee will surrender to Corporation all such materials.

    


    8.    Waiver
      of Breach.
      The
      waiver by either party of any breach of any provision of this Agreement shall
      not operate or be construed as a waiver of any subsequent breach.

    


    9.    Severability.
      The
      provisions of this Agreement, particularly Paragraph 5, are hereby deemed by
      the
      parties to be severable, and the invalidity or unenforceability of any one
      or
      more of the provisions of this Agreement shall not affect the validity or
      enforceability of the other provisions hereof.

    


    10.    Acknowledgment
      of Reasonableness.
      Employee has carefully read and considered the provisions of this Agreement
      and
      expressly agrees that the provisions hereof, including without limitation the
      Restrictive Covenants, are fair and reasonable and reasonably required for
      Corporation’s protection of its legitimate business interests, including,
      without limitation, the confidential and proprietary information and trade
      secrets of the Corporation, the substantial relationships between the
      Corporation and its customers, officers, directors, employees, independent
      contractors, agents and other personnel, and the goodwill of the Corporation.
      In
      the event that any provision of Paragraph 5 relating to the Restrictive Period,
      the Territory and/or the scope of activity restricted shall be declared by
      a
      court of competent jurisdiction to exceed the maximum time period, geographical
      area and/or scope of activity restricted that such court deems reasonable and
      enforceable under applicable law, the time period, area of restriction and/or
      scope of activity restricted that is held reasonable and enforceable by the
      court shall thereafter be the Restrictive Period, Territory and/or scope of
      activity restricted under this Agreement.

    


    11.    Addresses
      for Notices.
      Any
      notice contemplated, required, or permitted under this Agreement shall be
      sufficient if in writing and shall be deemed given when delivered personally
      or
      mailed by registered or certified mail, return receipt requested, to the
      addresses listed below:

    


    (a) To
      Corporation:  

    Attn:
      Global Axcess Board of Directors

    Global
      Axcess Corp

    7800
      Belfort Parkway, Suite 165

    Jacksonville,
      FL 32256

     

    
      
         

      

      
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      (b) To
        Employee:            

      George
        McQuain

      Global
        Axcess Corp

      7800
        Belfort Parkway, Suite 165

      Jacksonville,
        FL 32256

       

    

    or
      such
      subsequent address(es) as the respective parties may hereafter by written notice
      designate.

    


    12.    Governing
      Law, Forum.
      This
      Agreement shall in all respects be governed by and construed according to the
      laws of Florida. Any suit or other proceeding arising out of or relating to
      this
      Agreement shall be instituted and maintained in the state or federal courts
      sitting in Duval County, Florida, absent written consent of the Corporation
      to
      the contrary. Employee expressly waives any objections to such jurisdiction
      and
      venue and irrevocably consents and submits to the personal and subject matter
      jurisdiction of such courts in any such action or proceeding. 

    


    13.    Compliance
      with Code Section 409A. Notwithstanding the
      above and anything in this Agreement to the contrary, (i) if at the
      time of Employee’s termination of employment with the Corporation Employee is a
“specified employee” as defined in Section 409A of the Internal Revenue Code of
      1986, as amended (the “Code”) and the deferral of the commencement of any
      payments or benefits otherwise payable hereunder as a result of such termination
      of employment is necessary in order to prevent any accelerated or additional
      tax
      under Section 409A of the Code, then the Corporation will defer the commencement
      of the payment of any such payments or benefits hereunder (without any reduction
      in such payments or benefits ultimately paid or provided to Employee) until
      the
      date that is six (6) months following Employee’s termination of employment with
      the Corporation (or the earliest date as is permitted under Section 409A of
      the
      Code) and (ii) if any other payments of money or other benefits due to Employee
      hereunder could cause the application of an accelerated or additional tax under
      Section 409A of the Code, such payments or other benefits shall be deferred
      if
      deferral will make such payment or other benefits compliant under Section 409A
      of the Code, or otherwise such payment or other benefits shall be restructured,
      to the extent possible, in a manner, determined by the Board, that does not
      cause such an accelerated or additional tax. 

    


    14.    Successors,
      Heirs and Assigns.
      The
      rights and obligations of Employee under this Agreement shall inure to the
      benefit of Corporation, its successors and assigns, and shall be binding upon
      Employee and his respective successors, heirs and permitted assigns. Corporation
      shall have the right to assign, transfer, or convey this Agreement to its
      affiliated companies, successor entities, or assignees or transferees of
      substantially all of Corporation’s business activities. This Agreement, being
      personal in nature to Employee, may not be assigned by Employee without
      Corporation’s prior written consent.

    


    15.    Entire
      Agreement; Amendment.
      Except
      as otherwise provided in this Paragraph, this Agreement contains the entire
      agreement of the parties hereto, and may not be changed or amended orally,
      but
      only by an agreement in writing expressly purporting to amend this Agreement
      signed by both parties hereto; provided, however, to the extent the Restrictive
      Covenants shall be determined to be unenforceable for any reason, then such
      Restrictive Covenants shall be deemed to be in addition to, and not in lieu
      of,
      any similar obligations or restrictions to which Employee may be subject under
      the terms of any prior agreement with Employer.

    


    
      
         

      

      
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    IN
      WITNESS WHEREOF,
      the
      parties hereto have executed this Agreement under seal, as is their intention,
      as of the day and year first above written.

    


    


    GLOBAL
      AXCESS CORP

    


    By:
      Michael J. Loiacono

    Title:
      Chief Financial Officer

    


    


    /s/
      Michael J. Loiacono 

    Signature

    


    


    /s/
      George McQuain  

    George
      McQuain’s Signature

     

    
      
         

      

      
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    Schedule
      1

    


    COMPENSATION

    Salary
      & Benefits

     

    


    	1.  	
            Employee
              shall receive a base salary at the rate of $250,000 per year, payable
              in
              accordance with Corporation’s regular payroll practices as such practices
              may exist from time to time.

          


    


    	2.  	
            Employee
              shall be eligible to participate in the Corporation’s benefits as outlined
              in section 3 and section 4.3 of this Agreement under the terms and
              conditions of this Agreement. 

          


     

    
      
         

      

      
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