Attached files
SETTLEMENT
AGREEMENT
A.
Promissory
Note. Attached hereto as Exhibit A CAMOFI Master LDC (“CAMOFI”) is
providing wiring instructions to counsel for Global Axcess Corporation (“Global
Axcess”), and Global Axcess’s insurer, Admiral Insurance Company (“Admiral”).
Within the time period for closing and obtaining financing as set forth in
paragraph D below, Global Axcess will pay $3,500,000 to CAMOFI, together with
accrued but unpaid interest on the Note through and including the closing date
(“Interest”), and Admiral shall pay $200,000 to CAMOFI, in lump sums, to cancel
the Note. The payment of $3,700,000 and Interest is the entire payment that
Global Axcess or its insurer will make under the Note or under any transaction
documents executed by the parties in October 2005, with the exception of any
obligations that Global Axcess may have to CAMOFI, with respect to the warrant
and the registration rights agreement, and further provided that Global Axcess
shall pay to Centrecourt Asset Management LLC the amount of $25,000 to reimburse
it for the fees and disbursements of its legal counsel incurred in connection
with the subject litigation. All such transaction documents will remain in full
force and effect (subject to the parties’ litigation positions) until closing
pursuant to paragraph D hereof. Global Axcess will cooperate as required by such
transaction documents (including the registration rights agreement) in taking
steps to make sure that all of the shares of common stock underlying the warrant
are freely tradeable.
B. Warrant. The warrant
previously issued to CAMOFI shall remain unchanged and in full force and effect,
except that the exercise price thereof will be changed to $0.01 per share, and
the provisions in the warrant respecting rights to full ratchet anti-dilution
protection and most favored nation status (warrant §§ 3(b), 3(c)) will be
cancelled.
C. Mutual Releases / Dismissals
With Prejudice. Within ten (10) days following CAMOFI’s
receipt of settlement funds from Global Axcess and Admiral Insurance Company as
set forth above, the parties will give each other the usual form of general
release, which will apply to all actions taken and omissions made by each party,
its officers, directors, etc. through the date hereof, with the exception that
CAMOFI will not release Global Axcess from any obligations that Global Axcess
may have to CAMOFI, after the date hereof, with respect to the warrant and the
registration rights agreement. Also within ten (10) days following CAMOFI’s
receipt of settlement funds as provided herein, the parties shall file
stipulations of dismissal of the pending litigation (including CAMOFI’s claim
and Global Axcess’ counterclaim) with prejudice.
D. Financing. CAMOFI
acknowledges that Global Axcess needs to obtain new financing in order to make
the payment to which item A refers. As a result, this entire agreement is
contingent on Global Axcess’ successfully obtaining financing such that closing
on this Agreement can occur on or before April 16, 2009. Global Axcess agrees to
use commercially reasonable efforts to obtain such financing. If Global Axcess
is unsuccessful in obtaining such financing, this Agreement will become null and
void, and the parties will return to their positions as of the date hereof,
without prejudice to either party’s litigation position.
E. Definitive Agreement.
The parties’ settlement as set forth above is binding as of the execution of
this document on March 17, 2009. The parties will execute such other documents
as may be reasonably necessary to effectuate their settlement.
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/s/
Michael
Loew
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/s/
George
A. McQuain
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Michael
Loew
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George
A. McQuain
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CAMOFI
Master LDC
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President
& CEO, Global Axcess Corp
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March
17, 2009
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March
17,
2009
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ACKNOWLEDGMENT
Admiral
Insurance Company hereby acknowledges its obligation to fund the settlement on
the terms set forth above. Notwithstanding the foregoing, Admiral shall not be a
party to any other terms of this Settlement Agreement, and does not intend
to otherwise create any other rights or interests with respect
to this settlement.
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ADMIRAL
INSURANCE COMPANY
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By:
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/s/ Jane DiGioia
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Jane
DiGioia, Senior Claims Attorney, Monitor Liability Managers,
LLC
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