EXHIBIT 10.14
SECOND AMENDMENT TO THE
SEPARATION AGREEMENT AND AGREEMENT
TO TRANSFER SHARES
This SECOND AMENDMENT TO THE SEPARATION AGREEMENT AND AGREEMENT TO TRANSFER
SHARES (the "Agreement"), is entered into this ___ day of October, 2004, by and
between Xxxxxx Xxxxxxxx, an individual residing in Denver, Colorado ("Xxxxxxxx")
and Nighthawk Systems, Inc., a Nevada corporation ("Nighthawk" or the
"Company").
WHEREAS, Nighthawk and Xxxxxxxx entered into a Separation Agreement on September
8, 2003 and on December 19, 2003, Xxxxxxxx and Nighthawk amended the Separation
Agreement (the amended Seperation Agreement is referred to herein as the
"Separation Agreement") so as to, among other things, prohibit Xxxxxxxx from
selling, transferring, conveying or otherwise disposing of any Nighthawk shares
he and certain of his affiliates own for a period of eighteen (18) months from
December 19, 2003 (which would expire on June 19, 2005) (the "Lock Up Period")
and;
WHEREAS, Xxxxxxxx has agreed to transfer 600,000 shares of his Nighthawk common
stock to third parties for the purposes of providing financial public relations
for the Company, and;
WHEREAS, in exchange for agreeing to transfer up to 600,000 shares of his
Nighthawk common stock to the third parties, the Company has agreed to issue
730,000 newly issued common shares of the Company to Xxxxxxxx, and;
WHEREAS, Nighthawk desires that Xxxxxxxx not be able to sell, transfer or convey
the 730,000 newly issued shares of restricted common stock to be provided to him
for a period of eighteen months from the date of the execution of this
Agreement, and;
WHEREAS, Xxxxxxxx agrees to refrain from selling, transferring or otherwise
conveying the 730,000 newly issued shares to be provided to him for a period of
eighteen (18) months from the date of this agreement, and;
WHEREAS, the Company is further willing to release from the Lock-Up Period fifty
thousand (50,000) shares of Xxxxxxxx'x Nighthawk common stock on each of March
1, 2005, April 1, 2005, May 1, 2005 and June 1, 2005.
NOW THEREFORE, in consideration for the foregoing, the mutual promises set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Xxxxxxxx and Nighthawk each agree
as follows:
1. Amendment to Separation Agreement. Paragraph 3.D.1.of the Amended
Separation Agreement shall be amended to read in its entirety as follows:
1. Agree not to sell, transfer, convey or otherwise dispose of any shares
owned or held in trust by Xxxxxxxx, including the shares held for Xxxx and
Xxxxx Xxxx, until June 19, 2005, other than (i) 600,000 shares that the
Company agrees to release pursuant to a Rule 144(k) opinion letter from
Company's counsel no later than November 1, 2005, and (ii) 50,000 shares
per month that the Company agrees to authorize Xxxxxxxx to sell, transfer
or convey commencing on April 1, 2005 and continuing until June 1, 2005,
after which time the remainder of Xxxxxxxx'x shares of Nighthhawk common
stock shall be eligible to have the restriction lifted pursuant to Rule
144(k) and further provided that in the event the Company agrees to sell a
controlling interest of its shares in a transaction or series of
transactions prior to June 19, 2005, the lock-up of Xxxxxxxx'x shares and
the shares in trust by Xxxxxxxx shall not apply."
2. Transfer of Stock. On the date hereof Xxxxxxxx shall transfer 600,000
shares of Nighthawk common stock as directed by the Company.
3. Issuance of Stock. On the date hereof Nighthawk shall issue 730,000
shares of Nighthawk common stock to Xxxxxxxx.
4. Facsimile Signature and Counterparts. This Agreement may be executed by
facsimile signature in counterparts, each of which together shall
constitute a single document.
5. Governing Law; Attorney's Fees. The laws of the State of Colorado shall
apply to and control any interpretation, construction, performance or
enforcement of this Agreement. In the event of any dispute between
Nighthawk and Xxxxxxxx arising under this Agreement, the prevailing in such
dispute shall recover its costs and expenses associated with such dispute
including its reasonable attorneys fees.
2. Binding Effect. Each Party understands and agrees that this Separation
Agreement shall bind and inure to the benefit of itself, its officers,
directors, employees, agents, servants, subsidiaries, and parent companies,
insurers, sureties, successors and assigns.
3. On the date hereof Nighthawk shall deliver to Xxxxxxxx a copy of the
Board of Director resolution authorizing the issuance of the 730,000 shares to
Xxxxxxxx.
4. Nighthawk shall report this transaction as required by the applicable
rules and regulations of the Securities and Exchange Act of 1934, as amended.
Nighthawk Systems, Inc.
________________________ _____________________________
Xxxxxx Xxxxxxxx H. Xxxxxxx Xxxxxxxx
Chief Executive Officer
