EMPLOYMENT AGREEMENT BY AND BETWEEN MARKET CENTRAL, INC. AND DOYAL BRYANT
EXHIBIT
10.4
BY
AND BETWEEN
MARKET
CENTRAL, INC.
AND
▇▇▇▇▇
▇▇▇▇▇▇
THIS
EMPLOYMENT AGREEMENT
(the
"Agreement") is made and entered into as of October 8, 2004, by and between
MARKET
CENTRAL, INC.,
a
Delaware corporation (the "Company"), and ▇▇▇▇▇
▇▇▇▇▇▇
("Employee").
WHEREAS,
the
Company and Employee desire to enter into this Agreement to assure the Company
of the services of Employee and to set forth the respective rights and duties
of
the parties hereto;
WHEREAS,
the
Company will engage in the business of creating, managing, developing and
licensing software and technology solutions (such activities, present and
future, being hereinafter referred to as the "Business");
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants, terms and conditions
set
forth herein, the Company and Employee agree as follows:
ARTICLE
I
Employment
1.1
Employment and Title.
The
Company hereby employs Employee, and Employee hereby accepts such employment,
as
Chief Executive Officer of the Company, all upon the terms and conditions set
forth herein.
1.2
Services.
During
the Term (as hereinafter defined) hereof, Employee agrees to perform diligently
and in good faith the duties of the Chief Executive Officer of the Company,
under the direction of Board of Directors. Employee agrees to devote his best
efforts and all of his full business time, energies and abilities to the
services to be performed hereunder and for the exclusive benefit of the Company.
Employee shall be vested with such authority as is generally commensurate with
the position of Chief Executive Officer of the Company, as further outlined
below.
1.3
Location.
The
principal place of employment and the location of Employee's principal office
shall be in Charlotte, North Carolina; provided, however, Employee shall
undertake all requisite travel in the performance of his duties under this
Agreement.
1.4
Representations.
Each
party represents and warrants to the other that he/it has full power and
authority to enter into and perform this Agreement and that his/its execution
and performance of this Agreement shall not constitute a default under or breach
of any of the terms of any agreement to which he/it is a party or under which
he/it is bound. Each party represents that no consent or approval of any third
party is required for his/its execution, delivery and performance of this
Agreement or that all consents or approvals of any third party required for
his/its execution, delivery and performance of this Agreement have been
obtained.
1
1.5
Sole Discretion.
As the
term "sole discretion" is used in this Agreement, unless otherwise defined,
it
will be interpreted as the exercise of reasonable discretion applying normal
business practices to a contractual relationship between a company and its
senior vice president and chief technology officer.
ARTICLE
II
Term
2.1
Term.
The
term of Employee's employment hereunder (the "Term") shall commence as of
October 8, 2004 (the "Commencement Date") and shall continue through the third
anniversary of the Commencement Date (the "Scheduled Termination Date"), unless
earlier terminated pursuant to the provisions of this Agreement. This Agreement
shall automatically renew for an unlimited number of successive one-year terms
unless either party shall deliver written notice of non-renewal at least ninety
(90) days prior to the Scheduled Termination Date (or the Scheduled Termination
Date of any renewal term).
ARTICLE
III
Compensation
3.1
Base Salary.
As
compensation for the services to be rendered by Employee, the Company shall
pay
Employee, during the Term of this Agreement, an annual base salary of not less
than One Hundred Eighty Thousand Dollars ($180,000), which base salary shall
accrue monthly (prorated for periods less than a month) and shall be paid in
equal semi-monthly installments, in arrears unless the Board deems the companies
profit unable to support. The base salary will be reviewed annually, or, more
frequently, as appropriate, by the Board of Directors or the Compensation
Committee of the Board of Directors, as the case.
3.2
Bonus Compensation.
Employee shall be eligible to receive bonus or incentive compensation, equaling
2.5 times his annual salary based on meeting quarterly goals and objectives
established by the board which may be granted from time to time in the sole
discretion of the Board of Directors in accordance with the Company's
compensation structure in effect from time to time.
3.3
Stock Options. As
an
incentive to use consistent and best efforts solely on behalf of Market Central,
employee will be provided stock options. Stock Option Agreements are attached
as
Exhibits “A” through “D”. It is intended that the option evidenced by this
agreement shall, to the extent it so qualifies, be an incentive stock option
as
defined in Section 422 of the Internal Revenue Code of 1986, as amended and
any
regulations promulgated.
2
3.4
Employee's Legal Fees.
Employee
may, and the Company has encouraged the Employee to, engage competent
independent legal counsel for advice and guidance with respect to this
Agreement, including, without limitation, advice as to the federal income tax
consequences of this Article III. The Company shall reimburse Employee for
all
reasonable legal fees incurred by Employee in connection with the negotiation
and execution of this Agreement.
3.5
Benefits.
Employee shall be entitled, during the Term hereof, to the same medical,
hospital, dental, health club and life insurance coverage and benefits as are
then available to the Company's most senior executive officers. As
an
Employee of the Company and its chief executive officer, Employee may be
provided additional benefits as decided by the Board.
3.6
Withholding.
Any and
all amounts payable under this Agreement, including, without limitation, amounts
payable under this Article III and Article VII, are subject to withholding
for
such federal, state and local taxes required pursuant to any applicable law,
rule or regulation.
ARTICLE
IV
Working
Facilities, Expenses and Insurance
4.1
Working Facilities and Expenses.
Employee shall be furnished with an office at the Employee's principal office
as
set forth in Section 1.3 hereof, or at such other location as agreed to by
Employee and the Company, and other working facilities and secretarial and
other
assistance suitable to his position and reasonably required for the performance
of his duties hereunder. The Company shall reimburse Employee for all of
Employee's reasonable expenses incurred while employed and performing his duties
under and in accordance with the terms and conditions of this Agreement, subject
to Employee's full and appropriate documentation, including, without limitation,
receipts for all such expenses in the manner required pursuant to Company's
policies and procedures and the Internal Revenue Code of 1986, as amended (the
"Code"), and applicable regulations in effect from time to time.
4.2
Insurance.
The
Company may secure in its own name or otherwise, and at its own expense, life,
disability and other insurance covering Employee or Employee and others, and
Employee shall not have any right, title or interest in or to such insurance
other than as expressly provided herein. Employee agrees to assist the Company
in procuring such insurance by submitting to the usual and customary medical
and
other examinations to be conducted by such physicians(s) as the Company or
such
insurance company may designate and by signing such applications and other
written instruments as may be required by any insurance company to which
application is made for such insurance. Any information provided by Employee
to
such insurance company (the results of examinations being deemed part of such
information) will be provided on a confidential basis, and the Company shall
have no access thereto.
3
ARTICLE
V
Illness
or Incapacity
5.1
Right to Terminate.
If,
during the Term of this Agreement, Employee shall be unable to perform, with
or
without a reasonable accommodation, in all material respects the essential
duties of his employment hereunder for a period exceeding six (6) consecutive
months by reason of illness or incapacity, this Agreement may be terminated
by
the Company in its sole discretion pursuant to Section 7.2 hereof.
5.2
Right to Replace.
If
Employee's illness or incapacity, whether by physical or mental cause, renders
him unable for a minimum period of thirty (30) consecutive calendar days to
carry out his duties and responsibilities as set forth herein, the Company
shall
have the right to designate a person to temporarily perform Employee's duties;
provided, however, that if Employee returns to work from such illness or
incapacity within the six (6) month period following his inability due to such
illness or incapacity, he shall be entitled to be reinstated in the capacity
described in Article I hereof with all rights, duties and privileges attendant
thereto.
5.3
Rights Prior to Termination.
Employee shall be entitled to his full base salary under Section 3.1 hereof
and
full benefits under Section 3.4 hereof during such illness or incapacity unless
and until an election is made by the Company to terminate this Agreement in
accordance with the provisions of this Article V.
5.4
Determination of Illness or Incapacity.
For
purposes of this Article V, the term "illness or incapacity" shall mean
Employee's inability to perform his duties hereunder substantially on a
full-time basis due to physical or mental illness as determined by the Board
of
Directors, in its reasonable discretion based upon competent medical evidence.
Upon the Company's written request, Employee shall submit to reasonable medical
and other examinations to provide the evidence required hereunder.
ARTICLE
VI
Confidentiality
6.1
Confidentiality.
During
the Term of this Agreement and for a period of five (5) years thereafter,
Employee agrees to maintain the confidential nature of the Company's
confidential and proprietary trade secrets, including, without limitation,
development ideas, acquisition strategies and plans, financial information,
records, "know-how", methods of doing business, customer, supplier and
distributor lists and all other confidential information of the Company.
Employee shall not use (other than in connection with his employment), in any
way whatsoever, such trade secrets except as authorized in writing by the
Company. Employee shall, upon the termination of his employment, deliver to
the
Company any and all records, books, documents or any other materials whatsoever
(including all copies thereof) containing such trade secrets that shall be
and
remain the property of the Company.
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6.2
Non-Removal of Records.
All
documents, papers, materials, notes, books, correspondence, drawings and other
written, graphic and electronic records of the Business of the Company which
Employee shall prepare or use, or come into contact with, shall be and remain
the sole property of the Company and, effective immediately upon the termination
of the Employee's employment with the Company for any reason, shall not be
removed from the Company's premises without the Company's prior written
consent.
ARTICLE
VII
Termination
7.1
Termination For Cause.
This
Agreement and the employment of Employee may be terminated by the Company "For
Cause" upon the determination of not less than 75% of the members of the Board
of Directors of the Company (the “Super Majority”), , in any of the following
circumstances:
(a) Employee
has committed any fraud, dishonesty, misappropriation or similar wrongful act
against the Company; or
(b) Employee
is in default in a material respect in the performance of Employee's
obligations, services or duties hereunder, which shall include, without
limitation, Employee's willfully disregarding the written instructions of the
Board of Directors of the Company concerning the conduct of his duties
hereunder, Employee's conduct which, after written notice and an opportunity
to
cure, is materially inconsistent with the published policies of the Company,
as
promulgated from time to time and which are generally applicable to all
employees and/or senior executives, or Employee's breach of any other material
provision of this Agreement; or
(c) Employee
is grossly negligent or engages in willful misconduct in the performance of
his
duties hereunder; or
(d) Employee
has been adjudicated guilty by, or enters a plea of guilty or no contest before,
a court of competent jurisdiction of illegal activities or found by a court
of
competent jurisdiction to have engaged in other wrongful conduct which
individually, or in the aggregate, has a material adverse effect on the Company,
its prospects, earnings or financial condition, other than minor traffic
infractions.
A
Termination For Cause under this Section 7.1 shall be effective upon the date
set forth in a written notice of termination delivered to Employee.
5
7.2
Termination Without Cause.
This
Agreement and the employment of the Employee may be terminated "Without Cause"
as follows:
(a) By
mutual
agreement of the parties hereto; or
(b) At
the
election of the Company by its giving not less than thirty (30) days' written
notice to Employee in the event of an illness or incapacity described in Section
5.1; or
(c) Upon
Employee's death.
A
Termination Without Cause under Sections 7.2(b) and (c) hereof shall be
effective upon the date set forth in a written notice of termination or
resignation delivered hereunder, which shall be not less than thirty (30) days
nor more than forty-five (45) days after the giving of such notice.
7.3
Effect of Termination For Cause.
If
Employee's employment is terminated For Cause:
(a) Employee
shall be entitled to accrued base salary under Section 3.1 and accrued vacation
pay, each through the date of termination;
(b) Employee
shall be entitled to reimbursement for expenses accrued through the date of
termination in accordance with the provisions of Section 4.1 hereof;
and
(c) Except
as
provided in Article XI, this Agreement shall thereupon be of no further force
and effect.
7.4
Effect of Termination Without Cause.
If
Employee's employment is terminated Without Cause:
(a) Employee
shall be entitled to accrued base salary under Section 3.1 and accrued vacation
pay, each through the date of termination;
(b) Employee
shall be entitled to reimbursement for expenses accrued through the date of
termination in accordance with the provisions of Section 4.1
hereof;
(c) Employee
shall be entitled to receive base salary payable under Section 3.1 remaining
in
the then current term; plus no less than nine (9) months severance.
(d) Employee
shall be entitled to receive all bonuses and benefits as would have been awarded
and/or paid under Sections 3.2 and 3.4 hereof through (or as a result of events
occurring through) the Scheduled Termination Date, which benefits shall be
awarded as and when the same would have been awarded under the Agreement had
it
not been terminated; and
6
(e) Except
as
provided in Article XI, this Agreement shall thereupon be of no further force
or
effect.
(f)
All unvested stock options described in Exhibits A through D shall immediately
vest.
7.5
Termination Upon Change of Control.
Upon a
"Change of Control" (as such term is defined in Section 7.6 hereof) of the
Company during the Term hereof, Employee may, at his sole discretion, declare
this Agreement terminated and receive a one-time, lump sum severance payment
equal to two (2) times the total amount of the annual base salary payable under
the terms of Section 3.1 of this Agreement plus any incentive or bonus paid
in
the prior year pursuant to Section 3.2 of this Agreement and the Company and
Board of Directors shall cause the following to occur;
(a)
All unvested stock options described in Exhibits B through D shall immediately
vest
7.6
Change of Control.
For
purposes of Section 7.5 of this Agreement, a Change of Control ("Change of
Control") shall be deemed to have occurred in the event of:
(a) The
acquisition by any person or entity, or group thereof acting in concert, of
"beneficial" ownership (as such term is defined in Securities and Exchange
Commission ("SEC") Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), of securities of the Company which, together
with
securities previously owned, confer upon such person, entity or group the voting
power, on any matters brought to a vote of shareholders, of thirty percent
(30%)
or more of the then outstanding shares of capital stock of the Company;
or
(b) The
sale,
assignment or transfer of assets of the Company or any subsidiary or
subsidiaries, in a transaction or series of transactions, if the aggregate
consideration received or to be received by the Company or any such subsidiary
in connection with such sale, assignment or transfer is greater than fifty
percent (50%) of the book value, determined by the Company in accordance with
generally accepted accounting principles, of the Company's assets determined
on
a consolidated basis immediately before such transaction or the first of such
transactions; or
(c) The
merger, consolidation, share exchange or reorganization of the Company (or
one
or more subsidiaries of the Company) as a result of which the holders of all
of
the shares of capital stock of the Company as a group would receive less than
fifty percent (50%) of the voting power of the capital stock or other interests
of the surviving or resulting corporation or entity; or
(d) The
commencement (within the meaning of SEC Rule 14d-2 under the Exchange Act)
of a
tender or exchange offer which, if successful, would result in a Change of
Control of the Company; or
7
(e) A
determination by the Board of Directors of the Company, in view of then current
circumstances or impending events, that a Change of Control of the Company
has
occurred or is imminent, which determination shall be made for the specific
purpose of triggering the operative provisions of this Agreement;
or
7.7. Certain
Additional Payments by the Company.
(a)
If it
shall be determined that any payment, distribution or benefit received or to
be
received by Employee from the Company ("Payments") would be subject to the
excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then Employee
shall be entitled to receive an additional payment (the "Excise Tax Gross-Up
Payment) in an amount such that the net amount retained by Employee, after
the
calculation and deduction of any Excise Tax on the Payments and any federal,
state and local income taxes and excise tax on the Excise Tax Gross-Up Payment
provided for in this Section 7.7, shall be equal to the Payments. In determining
this amount, the amount of the Excise Tax Gross-Up Payment attributable to
federal income taxes shall be reduced by the maximum reduction in federal income
taxes that could be obtained by the deduction of the portion of the Excise
Tax
Gross-Up Payment attributable to state and local income taxes. Finally, the
Excise Tax Gross-Up Payment shall be reduced by income or excise tax withholding
payments made by the Company or any affiliate of either to any federal, state
or
local taxing authority with respect to the Excise Tax Gross-Up Payment that
was
not deducted from compensation payable to Employee.
(b)
All
determinations required to be made under this Section 7.7, including whether
and
when an Excise Tax Gross-Up Payment is required and the amount of such Excise
Tax Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, except as specified in Section 7.7(a) above, shall be made by
the
Company's independent auditors (the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Company and Employee within fifteen
(15) business days after Employee provides the Company with notice that a
Payment has been or will be made or such earlier time as may be required by
the
Company. The determination of tax liability made by the Accounting Firm shall
be
subject to review by the Employee's tax advisor and, if Employee's tax advisor
does not agree with the determination reached by the Accounting Firm, then
the
Accounting Firm and Employee's tax advisor shall jointly designate a nationally
recognized public accounting firm, which shall make the determination. All
fees
and expenses of the accountants and tax advisors retained by either Employee
or
the Company shall be borne by the Company. Any Excise Tax Gross-Up Payment,
as
determined pursuant to this Section 7.7, with respect to a Payment shall be
paid
by the Company to Employee at such time as Employee is entitled to receive
the
Payment. Any determination by a jointly designated public accounting firm shall
be binding upon the Company and Employee.
(c)
As a
result of the uncertainty in the application of Subsection 4999 of the Code
at
the time of the initial determination hereunder, it is possible that Excise
Tax
Gross-Up Payments will not have been made by the Company that should have been
made consistent with the calculations required to be made hereunder
("Underpayment"). In the event that Employee thereafter is required to make
a
payment of any Excise Tax, any such Underpayment calculated in accordance with
and in the same manner as the Excise Tax Gross-Up Payment in Section 7.7(a)
above shall be promptly paid by the Company to or for the benefit of Employee.
In the event that the Excise Tax Gross-Up Payment exceeds the amount
subsequently determined to be due, such excess shall constitute a loan from
the
Company to Employee payable on the fifth day after demand by the Company
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code).
8
ARTICLE
VIII
Non-Competition
and Non-Interference
8.1
Non-Competition.
Employee
agrees that during the Term hereof and, in the case of a Termination For Cause,
for a period of two (2) years thereafter, Employee will not, directly,
indirectly, or as an agent on behalf of or in conjunction with any person,
firm,
partnership, corporation or other entity, own, manage, control, join, or
participate in the ownership, management, operation, or control of, or be
financially interested in or advise, lend money to, or be employed by or provide
consulting services to (i) any person or entity seeking to provide the services
or products which the Company provided or planned on providing as of the date
of
termination, or (ii) any person or entity to whom Employee provided services
in
any capacity on behalf of the Company, or (iii) any person or entity to whom
Employee was introduced or about whom Employee received information through
the
Company and which person or entity is located within the United States of
America; provided, however, that the foregoing restriction regarding financial
interest shall not apply to ownership of less than 5% of the common equity
of
any entity whose common equity is registered under the Securities Exchange
Act
of 1934, as amended.
8.2
Non-Interference.
Employee agrees that during the Term hereof and, in the case of a Termination
For Cause, for a period of two (2) years thereafter, Employee will not, directly
or as an agent on behalf of or in conjunction with any person, firm,
partnership, corporation or other entity, retain or hire any person who was
an
employee of the Company while Employee was employed by the Company or to whom
Employee was introduced or about whom Employee received information through
the
Company.
8.3
Severability.
If any
covenant or provision contained in this Article VIII is determined to be void
or
unenforceable in whole or in part, it shall not be deemed to affect or impair
the validity of any other covenant or provision. If, in any arbitral or judicial
proceeding, a tribunal shall refuse to enforce all of the separate covenants
deemed included in this Article VIII, then such unenforceable covenants shall
be
deemed eliminated from the provisions hereof for the purpose of such proceedings
to the extent necessary to permit the remaining separate covenants to be
enforced in such proceedings.
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ARTICLE
IX
Remedies
9.1
Equitable Remedies.
Employee and the Company agree that the services to be rendered by Employee
pursuant to this Agreement, and the rights and interests granted and the
obligations to be performed by Employee to the Company pursuant to this
Agreement, are of a special, unique, extraordinary and intellectual character,
which gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in any action at law, and that a breach by
Employee of any of the terms of this Agreement will cause the Company great
and
irreparable injury and damage. Employee hereby expressly agrees that the Company
shall be entitled to the remedies of injunction, specific performance and other
equitable relief to prevent a breach of Articles VI and VIII of this Agreement,
both pendente
lite
and
permanently, against Employee, as such breach would cause irreparable injury
to
the Company and a remedy at law would be inadequate and insufficient. Therefore,
the Company may, in addition to pursuing its other remedies, obtain an
injunction from any court having jurisdiction in the matter restraining any
further violation.
9.2
Rights and Remedies Preserved.
Nothing
in this Agreement except Section 10.11 shall limit any right or remedy the
Company or Employee may have under this Agreement or pursuant to law for any
breach of this Agreement by the other party. The rights granted to the parties
herein are cumulative and the election of one shall not constitute a waiver
of
such party's right to assert all other legal remedies available under the
circumstances.
ARTICLE
X
Miscellaneous
10.1
No Waivers.
The
failure of either party to enforce any provision of this Agreement shall not
be
construed as a waiver of any such provision, nor prevent such party thereafter
from enforcing such provision or any other provision of this
Agreement.
10.2
Notices.
Any
notice to be given to the Company and Employee under the terms of this Agreement
may be delivered in person, by telecopy, telex or other form of written
electronic transmission, or by registered or certified mail, postage prepaid,
and shall be addressed as follows:
If
to the Company
Market
Central
Attention:
Chairman of Board
If
to Employee
▇▇▇▇▇
▇▇▇▇▇▇
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Either
party may hereafter notify the other in writing of any change in address. Any
notice shall be deemed duly given (i) when personally delivered, (ii) when
telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after
it
is mailed by registered or certified mail, postage prepaid, as provided
herein.
10.3
Severability.
The
provisions of this Agreement are severable and if any provision of this
Agreement shall be held to be invalid or otherwise unenforceable, in whole
or in
part, the remainder of the provisions, or enforceable parts thereof, shall
not
be affected thereby.
10.4
Successors and Assigns.
The
rights and obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company,
including the survivor upon any merger, consolidation, share exchange or
combination of the Company with any other entity. Employee shall not have the
right to assign, delegate or otherwise transfer any duty or obligation to be
performed by him hereunder to any person or entity.
10.5
Entire Agreement.
This
Agreement supersedes any and all prior and contemporaneous agreements and
understandings between the parties hereto, oral Or
written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by
the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law)
in
any proceeding that involves the interpretation of any provisions of this
Agreement.
10.6
Governing Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of North Carolina without reference to the conflict of law
principles thereof.
10.7
Section Headings.
The
section headings contained herein are for the purposes of convenience only
and
are not intended to define or limit the contents of said sections.
10.8
Further Assurances.
Each
party hereto shall cooperate and shall take such further action and shall
execute and deliver such further documents as may be reasonably requested by
the
other party in order to carry out the provisions and purposes of this
Agreement.
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10.9
Gender.
Whenever
the pronouns "he" or "his" are used herein they shall also be deemed to mean
"she" or "hers" or "it" or "its" whenever applicable. Words in the singular
shall be read and construed as though in the plural and words in the plural
shall be read and construed as though in the singular in all cases where they
would so apply.
10.10
Counterparts.
This
Agreement may be executed in counterparts, all of which taken together shall
be
deemed one original.
10.11
Confidential Arbitration.
The
parties hereto agree that any dispute concerning or arising out of the
provisions of this Agreement shall be resolved by confidential arbitration
in
accordance with the rules of the American Arbitration Association. Such
confidential arbitration shall be held in Tampa, Florida, and the decision
of
the arbitrator(s) shall be conclusive and binding on the parties and shall
be
enforceable in any court of competent jurisdiction. The arbitrator may, in
his
or her discretion, award attorneys’ fees and costs to such party as he or she
sees fit in rendering his or her decision. Notwithstanding the foregoing, if
any
dispute arises hereunder as to which the Company desires to exercise any rights
or remedies under Section 9.1 hereof, the Company may, in its discretion, in
lieu of submitting the matter to arbitration, bring an action thereon in any
court of competent jurisdiction in Tampa, Florida, which court may grant any
and
all relief available in equity or at law. In any such action, the prevailing
party shall be entitled to reasonable attorneys' fees and costs as may be
awarded by the court.
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ARTICLE
XI
Survival
11.1
Survival.
The
provisions of Articles VI, VII, VIII, IX and X, of this Agreement shall survive
the termination of this Agreement whether upon, or prior to, the Scheduled
Termination Date hereof.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Employment Agreement
as of the date first above written.
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Market
Central Inc, INC.,
a
Delaware corporation
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EMPLOYEE
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13
“Exhibit
A”
Market
Central, Inc.
Incentive
Stock Option Agreement
1.
Grant
of Option.
This
Incentive Stock Option Agreement (this “Agreement”) evidences the grant
by
Market Central, Inc., a Delaware corporation (the “Company”), on October 8, 2004
(the “Grant Date”) to ▇▇▇▇▇ ▇▇▇▇▇▇, an employee of the Company (the “Employee”),
of an option to purchase, in whole or in part, on the terms provided herein
a
total of 1,000,000 shares (the “Shares”) of common stock, $0.01 par value per
share, of the Company (“Common Stock”) at $1.60 per Share. Unless earlier
terminated, this option shall expire on October 8, 2008 (the “Final Exercise
Date”).
It
is
intended that the option evidenced by this agreement shall, to the extent it
so
qualifies, be an incentive stock option as defined in Section 422 of the
Internal Revenue Code of 1986, as amended and any regulations promulgated there
under (the “Code”). To the extent that the option does not on the date of grant,
or hereafter ceases to, qualify as an incentive stock option, it shall be a
non-qualified stock option. Except as otherwise indicated by the context, the
term “Employee”, as used in this option, shall be deemed to include any person
who acquires the right to exercise this option validly under its
terms.
2.
Vesting Schedule.
(a)
General. Subject to the terms and conditions set forth in this Agreement, this
option will become fully exercisable (“vested”) on the day of the closing.
Employee has four (4) years from the date of the closing to purchase the
options.
3.
Exercise of Option.
Form
of
Exercise. In order to exercise this option, the Employee shall notify the
Company’s third-party stock option plan administrator, or any successor
appointed by the Company (the “Plan Administrator”), of the Employee’s intent to
exercise this option, and shall follow the procedures established by the Plan
Administrator for exercising stock options under the Plan and provide payment
in
full in the manner provided in the Plan. The Employee may purchase less than
the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share.
(b)
Continuous Relationship with the Company Required. Except as otherwise provided
in this Section 3, this option may not be exercised unless the Employee, at
the
time he or she exercises this option, is, and has been at all times since the
Grant Date, an employee, officer or director of, or consultant or advisor to,
the Company or any parent or subsidiary of the Company.
14
(c)
Termination of Relationship with the Company. If the Employee ceases to be
an
Eligible Employee for any reason, then, except as provided in paragraphs (d)
and
(e) below, the right to exercise this option shall terminate three months after
such cessation (but in no event after the Final Exercise Date), provided that
(i) this option shall be exercisable only to the extent that the Employee was
entitled to exercise this option on the date of such cessation, and (ii) to
the
extent that the option or any portion thereof is exercised at any time later
than three months after the date that the Employee ceases to be an employee
of
the Company or any parent or subsidiary of the Company, the option shall be
a
non-qualified stock option. Notwithstanding the foregoing, if the Employee,
prior to the Final Exercise Date, violates the non-competition or
confidentiality provisions of any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Employee and the Company,
the right to exercise this option shall terminate immediately upon such
violation.
(d)
Exercise Period Upon Death or Disability. If the Employee dies or becomes
disabled prior to the Final Exercise Date while he or she is an Eligible
Employee and the Company has not terminated such relationship for “cause”, this
option shall be exercisable, within the period of one year following the date
of
death or disability of the Employee by the Employee, provided that (i) this
option shall be exercisable only to the extent that this option was exercisable
by the Employee on the date of his or her death or disability, (ii) this option
shall not be exercisable after the Final Exercise Date, and (iii) to the extent
that the option or any portion thereof is exercised at any time later than
one
year after the Employee’s termination as an employee of the Company or any
parent or subsidiary of the Company, the option shall be a non-qualified stock
option.
(e)
Discharge for Cause. If the Employee, prior to the Final Exercise Date, is
discharged by the Company for “cause” (as defined below), the right to exercise
this option shall terminate immediately upon the effective date of such
discharge. “Cause” shall mean willful misconduct by the Employee or willful
failure by the Employee to perform his or her responsibilities to the Company
(including, without limitation, breach by the Employee of any provision of
any
employment, consulting, advisory, nondisclosure, non-competition or other
similar agreement between the Employee and the Company), as determined by the
Company, which determination shall be conclusive. The Employee shall be
considered to have been discharged for “cause” if the Company determines, prior
to or simultaneously with the Employee’s resignation, that discharge for cause
was warranted.
(f)
Discharge for Reasons Other Than Cause. If the Employee, prior to the Final
Exercise Date, is discharged by the Company for a reason other than “cause” (as
defined above), then 100% of all Shares shall be deemed vested as of the
termination date. The period of time for exercise of vested options under this
paragraph (f) shall be as set forth in paragraph (c) above.
15
4.
Withholding.
No
Shares
will be issued pursuant to the exercise of this option unless and until the
Employee pays to the Company, or makes provision satisfactory to the Company
for
payment of, any federal, state or local withholding taxes required by law to
be
withheld in respect of this option.
5.
Nontransferability of Option.
This
option may not be sold, assigned, transferred, pledged or otherwise encumbered
by the Employee, either voluntarily or by operation of law, except by will
or
the laws of descent and distribution, and, during the lifetime of the Employee,
this option shall be exercisable only by the Employee.
6.
Disqualifying Disposition.
If
the
Employee disposes of Shares acquired upon exercise of this option within two
years from the Grant Date (or, in the case of Shares acquired upon exercise
of
an Additional Grant, the date of the Addendum) or one year after such Shares
were acquired pursuant to exercise of this option, the Employee shall notify
the
Company in writing of such disposition.
16
IN
WITNESS WHEREOF, the Company has caused this option to be executed under its
corporate seal by its duly authorized officer. This option shall take effect
as
a sealed instrument.
| MARKET CENTRAL, INC. | ||
| |
|
|
| Dated | ||
|
|
||
|
Signature
Name
Title
|
||
EMPLOYEE’S
ACCEPTANCE
The
undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof.
| EMPLOYEE: | ||
| |
|
|
|
|
||
|
Signature
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
17
“Exhibit
B”
Market
Central, Inc.
Incentive
Stock Option Agreement
1.
Grant
of Option.
This
Incentive Stock Option Agreement (this “Agreement”) evidences the grant
by
Market Central, Inc., a Delaware corporation (the “Company”), on October 8, 2004
(the “Grant Date”) to ▇▇▇▇▇ ▇▇▇▇▇▇, an employee of the Company (the “Employee”),
of an option to purchase, in whole or in part, on the terms provided herein
a
total of 1,000,000 shares (the “Shares”) of common stock, $0.01 par value per
share, of the Company (“Common Stock”) at $2.00 per Share. Unless earlier
terminated, this option shall expire on October 8, 2010 (the “Final Exercise
Date”).
It
is
intended that the option evidenced by this agreement shall, to the extent it
so
qualifies, be an incentive stock option as defined in Section 422 of the
Internal Revenue Code of 1986, as amended and any regulations promulgated there
under (the “Code”). To the extent that the option does not on the date of grant,
or hereafter ceases to, qualify as an incentive stock option, it shall be a
non-qualified stock option. Except as otherwise indicated by the context, the
term “Employee”, as used in this option, shall be deemed to include any person
who acquires the right to exercise this option validly under its
terms.
2.
Vesting Schedule.
General.
These options will vest, subject to achieving the stock price
goals
shown below and at 25% per year on the anniversary date of this agreement unless
price targets are achieved earlier Vesting of these options
shall
occur upon occurrence of the following:
|
|
|
Stock
PriceTarget
|
|
Year
1
|
(during
first year from commencement)
|
$2.25
|
|
Year
2
|
|
3.00
|
|
Year
3
|
|
3.75
|
|
Year
4
|
|
4.50
|
Stock
price target is achieved when the average closing bid is at least the target
price for 10 consecutive trading days during the respective year. Alternatively,
these options
or any portion thereof shall immediately vest if the Company completes an
underwriting of at least $5 million at or above the target price(s). Not
achieving price goals in one year does not result in loss of the options, only
that the ability to exercise is delayed, achieving any stock price target in
a
subsequent year results in all prior options being exercisable. Achieving a
stock price target earlier than shown on the table above will result in
immediate vesting and exerecisablity of those options in 50% of the time
contemplated herein. An example is:
18
| 1) |
If
the stock price reaches $3.80 in the first year of the contract,
then 75%
of the options are fully vested and owned by the employee. All
of them
would be exercisable after 1.5 years rather than 3
years.
|
| 2) |
If
the stock price were to remain at $2.00 for three years and then
move to
$5.00 in year three, all of the options would be vested and exercisable
immediately.
|
3.
Exercise of Option.
Form
of
Exercise. In order to exercise this option, the Employee shall notify the
Company’s third-party stock option plan administrator, or any successor
appointed by the Company (the “Plan Administrator”), of the Employee’s intent to
exercise this option, and shall follow the procedures established by the Plan
Administrator for exercising stock options under the Plan and provide payment
in
full in the manner provided in the Plan. The Employee may purchase less than
the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share.
(a)
Exercise Period Upon Death or Disability. If the Employee dies or becomes
disabled prior to the Final Exercise Date while he or she is an Eligible
Employee and the Company has not terminated such relationship for “cause”, this
option shall be exercisable, within the period of three years following the
date
of death or disability of the Employee by the Employee, provided that (i) this
option shall be exercisable only to the extent that this option was exercisable
by the Employee on the date of his or her death or disability, (ii) this option
shall not be exercisable after the Final Exercise Date, and (iii) to the extent
that the option or any portion thereof is exercised at any time later than
three
years death the option shall be a non-qualified stock option.
(b)
Discharge for Cause. If the Employee, prior to the Final Exercise Date, is
discharged by the Company for “cause” (as defined below), the right to exercise
this option shall terminate immediately upon the effective date of such
discharge. “Cause” shall mean willful misconduct by the Employee or willful
failure by the Employee to perform his or her responsibilities to the Company
(including, without limitation, breach by the Employee of any provision of
any
employment, consulting, advisory, nondisclosure, non-competition or other
similar agreement between the Employee and the Company), as determined by the
Company, which determination shall be conclusive. The Employee shall be
considered to have been discharged for “cause” if the Company determines, prior
to or simultaneously with the Employee’s resignation, that discharge for cause
was warranted.
(c)
Discharge for Reasons Other Than Cause. If the Employee, prior to the Final
Exercise Date, is discharged by the Company for a reason other than “cause” (as
defined above), then 100% of all Shares shall be deemed vested as of the
termination date. The period of time for exercise of vested options under this
paragraph (f) shall be as set forth in paragraph (c) above.
19
4.
Withholding.
No
Shares
will be issued pursuant to the exercise of this option unless and until the
Employee pays to the Company, or makes provision satisfactory to the Company
for
payment of, any federal, state or local withholding taxes required by law to
be
withheld in respect of this option.
5.
Nontransferability of Option.
This
option may not be sold, assigned, transferred, pledged or otherwise encumbered
by the Employee, either voluntarily or by operation of law, except by will
or
the laws of descent and distribution, and, during the lifetime of the Employee,
this option shall be exercisable only by the Employee.
6.
Disqualifying Disposition.
If
the
Employee disposes of Shares acquired upon exercise of this option within two
years from the Grant Date (or, in the case of Shares acquired upon exercise
of
an Additional Grant, the date of the Addendum) or one year after such Shares
were acquired pursuant to exercise of this option, the Employee shall notify
the
Company in writing of such disposition.
20
IN
WITNESS WHEREOF, the Company has caused this option to be executed under its
corporate seal by its duly authorized officer. This option shall take effect
as
a sealed instrument.
|
MARKET
CENTRAL, INC.
|
||
| |
|
|
| Dated: | ||
|
|
||
|
Signature
Name
Title
|
||
EMPLOYEE’S
ACCEPTANCE
The
undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof.
| EMPLOYEE: | ||
| |
|
|
|
|
||
|
Signature
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
21
“Exhibit
C”
Market
Central, Inc.
Incentive
Stock Option Agreement
1.
Grant
of Option.
This
Incentive Stock Option Agreement (this “Agreement”) evidences the grant
by
Market Central, Inc., a Delaware corporation (the “Company”), on October 8, 2004
(the “Grant Date”) to ▇▇▇▇▇ ▇▇▇▇▇▇, an employee of the Company (the “Employee”),
of an option to purchase, in whole or in part, on the terms provided herein
a
total of 1,000,000 shares (the “Shares”) of common stock, $0.01 par value per
share, of the Company (“Common Stock”) at $2.25 per Share. Unless earlier
terminated, this option shall expire on October
8, 2010 (the “Final Exercise Date”).
It
is
intended that the option evidenced by this agreement shall, to the extent it
so
qualifies, be an incentive stock option as defined in Section 422 of the
Internal Revenue Code of 1986, as amended and any regulations promulgated there
under (the “Code”). To the extent that the option does not on the date of grant,
or hereafter ceases to, qualify as an incentive stock option, it shall be a
non-qualified stock option. Except as otherwise indicated by the context, the
term “Employee”, as used in this option, shall be deemed to include any person
who acquires the right to exercise this option validly under its
terms.
2.
Vesting Schedule.
(a)
General. These options will vest, subject to achieving the stock price goals
shown below and at 25% per year on the anniversary date of this agreement unless
price targets are achieved earlier Vesting
of these options shall occur upon occurrence of the following:
|
|
Stock
PriceTarget
|
|
Year
1 (during
first year from commencement)
|
$5.25
|
|
Year
2
|
6.00
|
|
Year
3
|
6.75
|
|
Year
4
|
7.50
|
Stock
price target is achieved when the average closing bid is at least the target
price for 10 consecutive trading days during the respective year. Alternatively,
these options or any portion thereof shall immediately vest if the Company
completes an underwriting of at least $5 million at or above the target
price(s). Not achieving price goals in one year does not result in loss of
the
options, only that the ability to exercise is delayed, achieving any stock
price
target in a subsequent year results in all prior options being exercisable.
Achieving a stock price target earlier than shown on the table above will result
in immediate vesting and exercisablity of those options in 50% of the time
contemplated herein. An example is:
22
| 1) |
If
the stock price reaches $7.00 in the first year of the contract,
then 75%
of the options are fully vested and owned by the employee. All of
them
would be exercisable after 1.5 years rather than 3
years.
|
| 2) |
If
the stock price were to remain at $4.50 for three years and then
move to
$7.00 in year three, all of the options would be vested and exercisable
immediately.
|
3.
Exercise of Option.
Form
of
Exercise. In order to exercise this option, the Employee shall notify the
Company’s third-party stock option plan administrator, or any successor
appointed by the Company (the “Plan Administrator”), of the Employee’s intent to
exercise this option, and shall follow the procedures established by the Plan
Administrator for exercising stock options under the Plan and provide payment
in
full in the manner provided in the Plan. The Employee may purchase less than
the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share.
(a)
Exercise Period Upon Death or Disability. If the Employee dies or becomes
disabled prior to the Final Exercise Date while he or she is an Eligible
Employee and the Company has not terminated such relationship for “cause”, this
option shall be exercisable, within the period of one year following the date
of
death or disability of the Employee by the Employee, provided that (i) this
option shall be exercisable only to the extent that this option was exercisable
by the Employee on the date of his or her death or disability, (ii) this option
shall not be exercisable after the Final Exercise Date, and (iii) to the extent
that the option or any portion thereof is exercised at any time later than
three
years after the Employee’s death the option shall be a non-qualified stock
option.
(b)
Discharge for Cause. If the Employee, prior to the Final Exercise Date, is
discharged by the Company for “cause” (as defined below), the right to exercise
this option shall terminate immediately upon the effective date of such
discharge. “Cause” shall mean willful misconduct by the Employee or willful
failure by the Employee to perform his or her responsibilities to the Company
(including, without limitation, breach by the Employee of any provision of
any
employment, consulting, advisory, nondisclosure, non-competition or other
similar agreement between the Employee and the Company), as determined by the
Company, which determination shall be conclusive. The Employee shall be
considered to have been discharged for “cause” if the Company determines, prior
to or simultaneously with the Employee’s resignation, that discharge for cause
was warranted.
(c)
Discharge for Reasons Other Than Cause. If the Employee, prior to the Final
Exercise Date, is discharged by the Company for a reason other than “cause” (as
defined above), then 100% of all Options shall be deemed vested as of the
termination date. The period of time for exercise of vested options under this
paragraph (f) shall be as set forth in paragraph (c) above.
23
4.
Withholding.
No
Shares
will be issued pursuant to the exercise of this option unless and until the
Employee pays to the Company, or makes provision satisfactory to the Company
for
payment of, any federal, state or local withholding taxes required by law to
be
withheld in respect of this option.
5.
Nontransferability of Option.
This
option may not be sold, assigned, transferred, pledged or otherwise encumbered
by the Employee, either voluntarily or by operation of law, except by will
or
the laws of descent and distribution, and, during the lifetime of the Employee,
this option shall be exercisable only by the Employee.
6.
Disqualifying Disposition.
If
the
Employee disposes of Shares acquired upon exercise of this option within two
years from the Grant Date (or, in the case of Shares acquired upon exercise
of
an Additional Grant, the date of the Addendum) or one year after such Shares
were acquired pursuant to exercise of this option, the Employee shall notify
the
Company in writing of such disposition.
24
IN
WITNESS WHEREOF, the Company has caused this option to be executed under its
corporate seal by its duly authorized officer. This option shall take effect
as
a sealed instrument.
| MARKET CENTRAL, INC. | ||
| |
|
|
| Dated: | ||
|
|
||
|
Signature
Name
Title
|
||
EMPLOYEE’S
ACCEPTANCE
The
undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof.
| EMPLOYEE: | ||
| |
|
|
|
|
||
|
Signature
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
25
“Exhibit
D”
Market
Central, Inc.
Incentive
Stock Option Agreement
1.
Grant
of Option.
This
Incentive Stock Option Agreement (this “Agreement”) evidences the grant
by
Market Central, Inc., a Delaware corporation (the “Company”), on October 8, 2004
(the “Grant Date”) to ▇▇▇▇▇ ▇▇▇▇▇▇, an employee of the Company (the “Employee”),
of an option to purchase, in whole or in part, on the terms provided herein
a
total of 1,000,000 shares (the “Shares”) of common stock, $0.01 par value per
share, of the Company (“Common Stock”) at $2.50 per Share. Unless earlier
terminated, this option shall expire on October
8, 2010 (the “Final Exercise Date”).
It
is
intended that the option evidenced by this agreement shall, to the extent it
so
qualifies, be an incentive stock option as defined in Section 422 of the
Internal Revenue Code of 1986, as amended and any regulations promulgated there
under (the “Code”). To the extent that the option does not on the date of grant,
or hereafter ceases to, qualify as an incentive stock option, it shall be a
non-qualified stock option. Except as otherwise indicated by the context, the
term “Employee”, as used in this option, shall be deemed to include any person
who acquires the right to exercise this option validly under its
terms.
2.
Vesting Schedule.
(a)
General. This option shall become available to Employee on the day that the
stock of the Company is traded @ $10.00 per share for ten consecutive trading
days. These amounts shall be adjusted for stock splits and stock
dividends.
3.
Exercise of Option.
Form
of
Exercise. In order to exercise this option, the Employee shall notify the
Company’s third-party stock option plan administrator, or any successor
appointed by the Company (the “Plan Administrator”), of the Employee’s intent to
exercise this option, and shall follow the procedures established by the Plan
Administrator for exercising stock options under the Plan and provide payment
in
full in the manner provided in the Plan. The Employee may purchase less than
the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share.
(a)
Exercise Period Upon Death or Disability. If the Employee dies or becomes
disabled prior to the Final Exercise Date while he or she is an Eligible
Employee and the Company has not terminated such relationship for “cause”, this
option shall be exercisable, within the period of three years following the
date
of death or disability of the Employee by the Employee, provided that (i) this
option shall be exercisable only to the extent that this option was exercisable
by the Employee on the date of his or her death or disability, (ii) this option
shall not be exercisable after the Final Exercise Date, and (iii) to the extent
that the option or any portion thereof is exercised at any time later than
three
years after the Employee’s death , the option shall be a non-qualified stock
option.
26
(b)
Discharge for Cause. If the Employee, prior to the Final Exercise Date, is
discharged by the Company for “cause” (as defined below), the right to exercise
this option shall terminate immediately upon the effective date of such
discharge. “Cause” shall mean willful misconduct by the Employee or willful
failure by the Employee to perform his or her responsibilities to the Company
(including, without limitation, breach by the Employee of any provision of
any
employment, consulting, advisory, nondisclosure, non-competition or other
similar agreement between the Employee and the Company), as determined by the
Company, which determination shall be conclusive. The Employee shall be
considered to have been discharged for “cause” if the Company determines, prior
to or simultaneously with the Employee’s resignation, that discharge for cause
was warranted.
(c)
Discharge for Reasons Other Than Cause. If the Employee, prior to the Final
Exercise Date, is discharged by the Company for a reason other than “cause” (as
defined above), then 100% of all Shares shall be deemed vested as of the
termination date. The period of time for exercise of vested options under this
paragraph (f) shall be as set forth in paragraph (c) above.
4.
Withholding.
No
Shares
will be issued pursuant to the exercise of this option unless and until the
Employee pays to the Company, or makes provision satisfactory to the Company
for
payment of, any federal, state or local withholding taxes required by law to
be
withheld in respect of this option.
5.
Nontransferability of Option.
This
option may not be sold, assigned, transferred, pledged or otherwise encumbered
by the Employee, either voluntarily or by operation of law, except by will
or
the laws of descent and distribution, and, during the lifetime of the Employee,
this option shall be exercisable only by the Employee.
6.
Disqualifying Disposition.
If
the
Employee disposes of Shares acquired upon exercise of this option within two
years from the Grant Date (or, in the case of Shares acquired upon exercise
of
an Additional Grant, the date of the Addendum) or one year after such Shares
were acquired pursuant to exercise of this option, the Employee shall notify
the
Company in writing of such disposition.
27
IN
WITNESS WHEREOF, the Company has caused this option to be executed under its
corporate seal by its duly authorized officer. This option shall take effect
as
a sealed instrument.
| MARKET CENTRAL, INC. | ||
| |
|
|
| Dated: | ||
|
|
||
|
Signature
Name
Title
|
||
EMPLOYEE’S ACCEPTANCE
The
undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof.
| EMPLOYEE: | ||
| |
|
|
|
|
||
|
Signature
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
28