EMPLOYMENT AGREEMENT
THIS EMPLOYMENT
AGREEMENT
(this
“Agreement”)
is
made as of the 22nd day of September,
2005,
by and between MARKET
CENTRAL,
INC.,
d/b/a
SCIENTIGO,
INC.,
a
Delaware corporation (“COMPANY”)
and
Xxxxxxxx
X. Xxxxx,
an
individual resident of the State of North
Carolina
(the
“Executive”),
and
is effective as of the date hereof (the “Effective
Date”).
WHEREAS,
the
Company intends to employ Executive, and Executive desires to be employed
by the
Company; and
WHEREAS,
the
Company and Executive desire to set forth the terms and conditions on which
Executive shall be employed and provide services to the Company.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged by Executive and the Company including, without limitation,
the
promises and covenants described herein, the parties hereto, intending to
be
legally bound, hereby agree as follows:
ARTICLE
I
EMPLOYMENT
Section
1.1 Duties
and Responsibilities.
The
Company hereby employs Executive full time as the Vice
President, Chief Financial Office
of the
Company. Executive shall do and perform all reasonable services and acts
necessary or advisable to fulfill the duties of such office, and shall conduct
and perform such additional services and activities as may be reasonably
determined from time to time by the Board of Directors of the Company (the
“Board”).
During the term of this Agreement, Executive shall devote his/her full time,
energy and skill to the business of the Company and to the promotion of the
Company’s interests, and Executive acknowledges that he/she has a duty of
loyalty to the Company and shall not, during the term hereof, engage in,
directly or indirectly, any other business or activity whether or not for
pecuniary gain, that could materially and adversely affect the Company’s
business or Executive’s ability to perform his/her duties under this Agreement.
The foregoing shall not, however, preclude Executive from serving on the
boards
of directors of other entities, if approved in writing by the
Board.
Notwithstanding
the above, the Executive shall be permitted during the term of this Agreement
to
perform services for InSource Business Strategies in Mooresville, North Carolina
(“InSource”) for current compensation of $36,000 per annum paid by InSource. The
estimated time per week for such services is six to eight hours a week. Such
services, when practical, shall be performed outside of normal business hours
and such services shall be secondary in priority to the Executive’s duties and
responsibilities for the Company.
In
his/her capacity as an officer of the Company, Executive shall report to
the
Board and abide by all rules and regulations established from time to time
by
the Board. Executive’s authority and responsibility in the Company shall at all
times be subject to the review and discretion of the Board, which shall have
the
final authority to make decisions regarding the business of the
Company.
Section
1.2 Term
of Employment.
The
term of Executive’s employment hereunder shall continue for a period of one (1)
year and one (1) month (“Initial Period”) from the Effective Date, unless
earlier terminated as provided in this Agreement. The term may be extended
by
mutual written agreement of the parties.
Section
1.3 Benefits.
During
the term of Executive’s employment hereunder, Executive will be entitled to the
following:
(a) Vacation.
Executive shall be entitled to three
weeks
paid vacation annually. No unused vacation time (except that accumulated
as of
the date of this agreement, which does not exceed 3 weeks) will accumulate
and
carryover to subsequent years. Executive shall also be entitled to reasonable
holidays and sick days in accordance with the Company’s policy as may be
established and modified from time to time.
(b) Employee
Benefit Plans.
Executive shall be entitled to participate in all employee benefit plans,
including any life insurance, disability insurance and retirement plans that
are
generally offered to or provided for the senior executives of the Company,
said
plans to be approved by the Board. Executive shall be entitled to participate
in
such group health and dental insurance plans (including family coverage)
on the
same basis, including cost provisions, as may from time to time be offered
generally to the other senior executives of the Company.
Section
1.4 Compensation.
For all
services to be rendered by Executive under this Agreement, the Company shall
pay
Executive as follows:
(a) Base
Salary.
Executive shall be paid an annual gross salary of one
hundred twenty thousand Dollars
($120,000)
payable
in accordance with the normal payroll practices of the Company, which policies
may be changed by the Company from time to time, and shall be subject to
appropriate withholding taxes. In any event, Executive’s salary shall be paid no
less frequently than monthly. At the sole discretion of the Board, Executive’s
annual gross salary may be increased, from time to time, throughout the term
of
this Agreement, the amount of any such increase to be determined by the Board
(or by the Compensation Committee thereof).
(b) Annual
Bonus.
If the
Board shall so authorize, Executive shall be paid an annual bonus in an amount
and in the manner approved by the Board in its sole discretion (or by the
Compensation Committee thereof), within ninety (90) days of the end of each
fiscal year ending August 31, provided Executive is still employed by the
Company.
Section
1.5 Business
Expenses.
Executive shall be entitled to reimbursement of all ordinary and necessary
business expenses reasonably incurred for business travel, lodging,
entertainment and meals in connection with the performance of Executive’s duties
under this Agreement, upon submission of sufficient documentation evidencing
same and in accordance with the Company’s established policies for reimbursement
of business expenses.
Section
1.6 Place
of Employment.
Executive shall be entitled to reside and perform his/her duties in Charlotte,
NC.
2
ARTICLE
II
COVENANTS
OF EXECUTIVE
Section
2.1 Confidentiality.
Executive recognizes the interest of the Company in maintaining the confidential
nature of its proprietary and other business and commercial information.
In
connection therewith, Executive covenants that during the term of his/her
employment with the Company under this Agreement, and for a period of two
(2)
years thereafter (except as set forth in Section 2.2 hereof), Executive shall
not, directly or indirectly, except as authorized in writing by the Board,
publish, disclose or use for his/her own benefit or for the benefit of a
business or entity other than the Company or otherwise, any secret or
confidential matter, or proprietary or other information not in the public
domain that was acquired by Executive during his/her employment, relating
to the
Company or any of its affiliates’ businesses, operations, customers, suppliers,
products, employees, financial information, budgets, practices, strategies,
prices, methods, technology, know-how, intellectual property, documentation,
concepts, improvements, plans, research and development, leads and/or marketing
materials, records, files, databases, accounting journals, accounts receivable
records, business plans and other similar information (the “Confidential
Information”);
provided,
however, Confidential
Information does not include information that (i)
is or
becomes generally available to the public other than as a result of a breach
of
this Agreement; (ii) is disclosed with the prior written consent of the Company;
(iii) at the time of such disclosure, was already known or in the possession
of
Executive; (iv) becomes available to a competitor of the Company on a
non-confidential basis from a source other than Executive, which source is
not
prohibited from disclosing such Confidential Information by a legal, contractual
or fiduciary obligation to the Company; or (v) is independently developed
by a
competitor of the Company.
Executive will abide by the Company’s policies and regulations, as established
from time to time, for the protection of its Confidential
Information.
Section
2.2 Trade
Secrets.
Executive shall not, at any time, either during or after the term of his/her
employment with the Company under this Agreement, use or disclose any “Trade
Secrets” (as defined by the Delaware Uniform Trade Secrets Act) of the Company
or its affiliates, except in fulfillment of his/her duties during his/her
employment, for so long as the pertinent information or data remain Trade
Secrets, whether or not the Trade Secrets are in written or tangible form.
Notwithstanding anything to the contrary contained herein, Executive shall
not
be prohibited hereunder from disclosing Trade Secrets if, in the written
opinion
of counsel for Executive, such disclosure is required by applicable law,
in
which event Executive shall provide the Company with prompt written notice
of
such request and shall take all reasonable action requested by the Company
to
obtain confidential treatment of such Trade Secrets.
Section
2.3 Surrender
of Records.
Executive shall provide the Company with notice of any inadvertent disclosure
of
Confidential Information. Executive acknowledges that all Confidential
Information is and shall remain the sole property of the Company and/or such
affiliated entity or subsidiary and shall, upon termination of Executive’s
employment with the Company for any reason whatsoever, or upon the request
of
the Company, turn over to the Company all Confidential Information, without
retaining notes or copies thereof (together with a written statement certifying
as to his/her compliance with the foregoing).
3
Section
2.4 Non-Solicitation
of Clients/Employees.
During
the term of Executive’s employment with the Company, and for the one (1) year
period following the termination of Executive’s employment with the Company for
any or no reason, Executive shall not, directly or indirectly:
(a) solicit
or accept, or attempt to solicit or accept any business from any individual
or
entity that was a customer or client of the Company during the one (1) year
period ending on the date of termination of Executive’s employment with the
Company, or actively sought after prospective clients, for the purpose of
providing services or products to such customer or client which are competitive
with the services or products offered or provided by the Company or its
affiliates; or
(b) employ,
induce, solicit or attempt to solicit for employment, or assist others in
employing, inducing or soliciting for employment, any individual who is or
was
an employee or independent contractor of the Company or its affiliates at
any
time during the one (1) year period ending or the date of termination of
Executive’s employment with the Company in an attempt to have any such
individual work for Executive, or any other individual or entity in the business
of (i) intelligent document recognition, (ii) enterprise content
management or (iii) search technologies (collectively, the “Business”).
Section
2.5 Non-Competition.
During
the term of Executive’s employment with the Company, and for the one (1) year
period following the termination of Executive’s employment with the Company,
Executive shall not, without the prior written consent of the Board, which
consent may be withheld at the sole discretion of the Board, directly or
indirectly, in his or her individual capacity as owner, director, officer,
employee, consultant or agent, or on behalf of any other individual,
partnership, corporation, limited liability company or other entity, engage
in
or be associated with any business that, directly or indirectly, competes
with
the Company in the Business or engages in activities identical or substantially
similar to the Business. Nothing herein shall preclude Executive from holding
not more than one-percent (1%) of the outstanding equity of any company,
so long
as Executive does not, in fact, have the power to participate in controlling
or
directing the management of such company other than by such voting
equity.
Section
2.6 Acknowledgment
of Reasonableness/Enforcement/Tolling.
(a) The
existence of any claim or cause of action by Executive against the Company
predicated on this Agreement or otherwise, shall not constitute a defense
to the
enforcement by the Company of these covenants. Executive acknowledges and
confirms (i) that the restrictions contained herein are fair and reasonable
and
not the result of overreaching, duress, or coercion of any kind, and (ii)
that
Executive’s full, uninhibited, and faithful observance of each of the covenants
contained in this Agreement will not cause Executive any undue hardship,
financial or otherwise. In the event that any court shall formally hold that
the
restrictions in this Article II are unreasonable, Executive hereby expressly
agrees that the restrictions shall not be rendered void, but shall apply
to the
extent that such court may judicially determine or indicate constitutes a
reasonable restriction.
(b) Executive
acknowledges that the services to be rendered by Executive hereunder are
extraordinary and unique and are vital to the success of the Company, and
that
damages at law would be an inadequate remedy for any breach or threatened
breach
of this Agreement by Executive. Therefore, in the event of a breach or
threatened breach by Executive of any provision of this Agreement, the Company
shall be entitled, in addition to all other rights or remedies, to injunctions
restraining such breach, without being required to show any actual damage
or to
post any bond or other security. No remedy herein conferred upon any party
is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law, in equity or otherwise. No
single
or partial exercise by any party of any right, power or remedy hereunder
shall
preclude any other or further exercise thereof.
4
(c) In
the
event the Company should bring any legal action or other proceeding for the
enforcement of the Agreement, the time for calculating the confidentiality
or
non-solicitation period, or terms of any other restriction herein shall not
include the period of time commencing with the filing of the legal action
or
other proceeding to enforce the terms of the Agreement through the date of
final
judgment or final resolution, including all appeals, if any, of such legal
action or other proceeding.
ARTICLE
III
REPRESENTATIONS
OF EXECUTIVE/INDEMNIFICATION
Section
3.1 Representations
and Warranties of Executive/Indemnification. Executive
represents and warrants to the Company that he/she is fully empowered to
enter
and perform his/her obligations under this Agreement and that he/she is under
no
restrictive covenants to any person or entity that will be violated by his/her
entering into and performing this Agreement, and that this Agreement constitutes
the valid and legally binding obligation of Executive enforceable in accordance
with its terms. Executive shall indemnify the Company upon demand for and
against any and all judgments, losses, claims, damages, costs (including,
without limitation, all legal fees and costs, even if incident to appeals)
incurred or suffered by the Company as a result of the breach of the
representations and warranties made in this Article 3.
ARTICLE
IV
TERMINATION
OF EMPLOYMENT
Section
4.1 Termination
by the Company.
Executive’s employment may be terminated by the Company during the term of this
Agreement upon the occurrence of one or more of the following
events:
(a) Termination
For Death.
Immediately upon Executive’s death.
(b) Termination
For Disability.
Upon
the effective date of written notice from the Company (which shall not be
prior
to the date on which such notice is sent) in the event of Executive’s disability
which renders Executive incapable of performing his/her duties for more than
one
hundred and twenty (120) calendar days in one calendar year or within
consecutive calendar years.
5
(c) Termination
Without Cause.
The
Company may after the initial term (1 year and 1 month) terminate Executive’s
employment without cause for any or no reason (other than those set forth
in
Section 4.1(d) hereof), thirty (30) days after written notice sent to Executive
following a determination by the Board to so terminate Executive’s
employment.
(d) Termination
For Cause.
Upon
the effective date of written notice sent to Executive (which shall not be
prior
to the date on which such notice is sent) stating the Company’s determination
that it is terminating Executive for “Cause”, which for purposes of this
Agreement shall mean:
(i) any
intentional act of fraud, embezzlement or theft of funds or property of the
Company or any of its clients/customers;
(ii) any
gross
and willful misconduct having an adverse effect upon the Company;
(iii) any
intentional wrongful disclosure of Confidential Information or Trade Secrets
of
the Company or its affiliates or any intentional form of self-dealing
detrimental to the interests of the Company or its affiliates;
(iv) conviction
of a felony or any similar crime causing harm to the reputation of the Company
or its affiliates as determined by the Board (for these purposes, conviction
shall include a plea of no contest or plea to any lesser charges predicated
on
the same underlying conduct);
(v) the
habitual and debilitating use of alcohol or drugs; or
(vi) failure
to comply in any material respect with the terms of this Agreement, which
failure has an adverse effect on the Company and has not been cured by Executive
within thirty (30) days after written notice from the Board of any such act
or
omission.
Section
4.2 Resignation
by Executive.
Executive’s employment may be terminated by Executive during the term of this
Agreement upon the occurrence of one or more of the following
events:
(a) Voluntary
Resignation. Executive may terminate his/her employment under this Agreement,
after the initial term, by giving thirty (30) days’ prior written notice to the
Company stating Executive’s election to terminate his/her employment with the
Company. The Company may accept such resignation effective as of any date
during
such thirty (30) day period as the Company deems appropriate; provided, however,
Executive shall receive from the Company his/her base salary and be entitled
to
participate in Company benefit plans in which he/she was a participant as
of the
effective date of his/her resignation for the duration of such thirty (30)
day
period (as further provided in Section 4.4(a) hereof).
6
(b) Resignation
With Cause.
Upon
the effective date of written notice sent to the Company stating Executive’s
determination of “Constructive Termination” (hereinafter defined) by the
Company; provided,
however,
if the
Constructive Termination is curable, then the Company shall have thirty (30)
days after Executive’s written notice to cure such condition and if the Company
fails to cure such condition to the reasonable satisfaction of Executive,
then
Executive may immediately terminate his/her employment with the Company,
such
termination to be conclusively deemed to be a resignation with cause. For
purposes of this Agreement, “Constructive Termination” shall mean:
(i) Such
change in duties or position as:
(A)
the
assignment (other than an occasional temporary assignment) to Executive of
any
duties not commensurate with Executive’s position, duties, responsibilities and
status with the Company;
(B)
a
material change in Executive’s reporting responsibilities, (i.e., reporting to a
lower tier) or a diminution in Executive’s titles or offices; or
(C)
a
material diminution of Executive’s authority or responsibilities.
(ii) A
reduction in Executive’s base salary specified in Section 1.4(a) hereof for the
calendar year 2005, or a reduction in Executive’s base salary in effect for the
prior calendar year for all succeeding years (other than pro rata reductions
in
compensation for all senior executives of the Company).
(iii) the
Company’s failure to comply in any material respect with the terms of this
Agreement, which failure has an adverse effect on Executive.
Section
4.3 Change
of Control.
Upon
(i) the effective date of a written notice sent to Executive by the Company
stating that a “Change of Control” (hereinafter defined) has occurred or will
occur and Executive’s employment will be terminated in connection therewith
(despite the Company’s best efforts to the contrary as set forth in Section 5.8
hereof), which notice must be given no later than thirty (30) days following
such Change of Control, or (ii) the date of termination if Executive is
terminated without cause or resigns with cause within twelve (12) months
of a
Change of Control. A “Change of Control” shall be deemed to have occurred if (A)
as a result of any merger, consolidation, sale, assignment, transfer or other
transaction, any person, other than those persons who are shareholders of
the
Company or its affiliates (within the meaning of Rule 501 of the Securities
Act
of 1933) on the date hereof, becomes the “beneficial owner” (as defined in Rule
13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended) of
more
than 50% of the outstanding voting securities of the Company or the surviving
entity or becomes entitled to elect more than one-half (½) of the Board or other
governing body of the Company or the surviving entity; (B) a tender offer
shall
be made and consummated of the ownership of 50% or more of the outstanding
voting securities of the Company; or (C) the Company sells, assigns or otherwise
transfers all or substantially all of the assets of the Company, to persons
other than those persons who are shareholders of the Company or its affiliates;
provided,
however, in
no
event shall a financing transaction (such as additional rounds of financing),
which is approved by the Board and entered into by the Company be deemed
to be a
“Change of Control”.
7
Section
4.4 Effect
of Termination/Change of Control.
(a) Termination
for Death or Voluntary Resignation.
In the
event of termination of Executive’s employment pursuant to Sections 4.1(a)
or 4.2(a) hereof:
(i) the
Company shall pay to Executive the base salary and expenses otherwise payable
to
Executive under Sections 1.4(a) and 1.5 hereof through the date of
termination (provided that in the event of Executive’s death, the Company shall
also pay to Executive’s estate his/her base salary for a period of one (1) month
after the date of Executive’s death), as well as any accrued but unpaid vacation
time. For purposes of this Agreement, one (1) week of vacation shall be deemed
to accrue every six (6) months. Executive shall not be entitled to receive
any
severance pay except to the extent the Board, in its sole discretion, elects
to
authorize severance pay in the event of Executive’s voluntary
resignation.
(ii) Executive’s
rights under the Company’s benefit plans of general application shall be
determined under the provisions of those plans.
(iii) Executive
shall not be entitled a bonus under Section 1.4(b) hereof for the year of
termination except to the extent the Board, in its sole discretion, elects
to
authorize a bonus in the event of Executive’s voluntary
resignation.
(iv) Executive’s
rights with respect to option shares shall be determined under the provisions
of
his/her stock option agreement but shall include the provision that unvested
options shall be forfeited by employee and in the case of Voluntary Resignation
½ of vested and unexercised options shares will be forfeited also.
(b) Termination
For Disability; Termination Without Cause; Resignation With Cause; Termination
in Connection with a Change of Control.
In the
event of termination of Executive’s employment pursuant to Sections 4.1(b),
4.1(c), 4.2(b) or 4.3 hereof:
(i) The
Company shall pay to Executive the base salary and expenses otherwise payable
to
Executive under Sections 1.4(a) and 1.5 hereof through the date of
termination as well as any accrued but unpaid vacation time (provided that
in
the event of Executive’s disability, the base salary payable to Executive shall
be less any disability benefits provided by the Company). In addition, Executive
shall be entitled to six (6) month’s salary continuation (provided, however,
there shall be one (1) year salary continuation in the event of a Change
of
Control) at the then current rate, payable in accordance with the normal
payroll
practices of the Company. Such severance payments are to be considered
compensation for services previously rendered hereunder.
(ii) Executive
shall continue to participate in the Company’s group health plan for three
months following the date of termination upon the timely periodic payment
of any
amount required for employees to maintain family coverage for such plan,
and
rights under other benefit plans shall be determined under the provisions
of
those plans.
(iii) Executive
shall be entitled to a bonus under Section 1.4(b) hereof for the year of
termination in any amount as may be determined by the Board (or by the
Compensation Committee thereof) in its sole discretion.
8
(iv) Executive’s
rights with respect to the option shares shall be determined under the
provisions of his/her stock option agreement but shall provide that a minimum
of
½ of the unvested options shall immediately vest.
(c) Termination
For Cause.
In the
event of termination of Executive’s employment prior to Section 4.1(d)
hereof:
(i) the
Company shall pay to Executive the base salary and expenses otherwise payable
pursuant to Sections 1.4(a) and 1.5 hereof through the date of termination.
Executive shall not be entitled to receive any severance pay
whatsoever.
(ii) Executive’s
rights under the Company’s benefit plans of general application shall be
determined under the provisions of those plans.
(iii) Executive
shall not be entitled to a bonus under Section 1.4(b) hereof for the year
of
termination.
(iv) Executive’s
rights with respect to the option shares shall be determined under the
provisions of his/her stock option agreement but shall provide that all unvested
options shall be forfeited.
ARTICLE
V
GENERAL
PROVISIONS
Section
5.1 Survival.
Notwithstanding anything to the contrary herein, the provisions of this
Agreement shall survive and remain in effect in accordance with their respective
terms in the event Executive’s employment is terminated for any or no
reason.
Section
5.2 Enforcement
Costs.
If any
civil action, arbitration, or other legal proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach,
default
or misrepresentation in connection with any provision of this Agreement,
the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys’ fees, sales and use taxes, court costs, and all expenses
(including, without limitation, all such fees, taxes, costs, and expenses
incident to arbitration, appellate and post-judgment proceedings), incurred
in
that civil action, arbitration, or legal proceeding, in addition to any other
relief to which such party or parties may be entitled.
Section
5.3 Notices.
For
purposes of this Agreement, all communications including, without limitation,
notices, consents, requests or approvals, provided for herein shall be in
writing and shall be deemed to have been duly given (a) when personally
delivered, (b) on the following day if submitted to a nationally recognized
overnight courier service as evidenced by a receipt, or (c) five (5) business
days after having been mailed by United States registered mail or certified
mail, return receipt requested, postage prepaid, addressed to:
|
If
to the Company:
|
If
to Executive:
|
|
Market
Central, Inc. d/b/a Scientigo, Inc.
|
|
|
0000
Xxxxxx Xxxx, Xxxxx 00000
|
|
|
Xxxxxxxxx,
XX 00000
|
|
|
Attn:
Xxxxx Xxxxxx
|
9
or
to
such other address as a party may have furnished to the other in writing
and in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
Section
5.4 Governing
Law.
The
validity, interpretation, construction, performance and enforcement of this
Agreement shall be governed by the laws of the State of Delaware, without
giving
effect to the principles of conflicts of law of such State.
Section
5.5 Severability.
If any
provision of this Agreement or the application of any provision hereof to
any
person or circumstances is held invalid, unenforceable or otherwise illegal,
under applicable law or regulation, the remainder of this Agreement and the
application of such provision to any other person or circumstances shall
not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent (and only to the extent) necessary
to
make it valid, enforceable and legal; provided,
however,
if the
provision so held to be invalid, unenforceable or otherwise illegal constituted
a material inducement to a party’s execution and delivery of this Agreement,
such provision shall not be reformed unless prior to any reformation that
party
agrees to be bound by the reformation.
Section
5.6 Entire
Agreement.
This
Agreement supersedes any other agreements, oral or written, between the parties
with respect to the subject matter hereof, and contains all of the agreements
and understandings between the parties with respect to the employment of
Executive by the Company.
Section
5.7 Amendments.
Any
amendment or modification of any term of this Agreement shall be effective
only
if it is set forth in writing signed by the parties hereto.
Section
5.8 Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective administrators, executors, representatives, heirs,
successors and permitted assigns. “Successor” shall mean any successor in
interest, pursuant to a Change of Control as set forth in Section 4.3 hereof.
The Company shall use its commercially reasonable efforts to cause any Successor
which is not obligated to assume the Company’s contracts to agree at the time of
becoming a Successor to perform this Agreement to the same extent as the
original parties would be required if no succession had occurred.
Section
5.9 Assignment.
This
Agreement is personal in nature and the parties shall not, without written
consent of the other party, assign, transfer or delegate this Agreement or
any
rights or obligations hereunder.
Section
5.10 Waivers.
No
provision of this Agreement may be waived or discharged unless such waiver
or
discharge is agreed to in writing signed by the party to be bound. No waiver
by
a party hereto at any time of any breach or noncompliance with any provision
or
condition of this Agreement to be performed by such other party shall be
deemed
a waiver of any other provisions or conditions at the same or at any prior
or
subsequent time.
10
Section
5.11 Captions.
The
captions in this Agreement are solely for convenience of reference and shall
not
be given any effect in the construction or interpretation of this
Agreement.
Section
5.12 Counterparts/
Facsimile Signatures.
This
Agreement may be executed in one or more counterparts (whether by facsimile
or
otherwise), each of which shall be deemed to be an original, and all of which
together will constitute one and the same Agreement.
Section
5.13 General
Release and Covenant Not to Xxx.
(a) Executive
acknowledges and agrees that by carrying out the terms of this Agreement,
he
expressly denies that any liability exists vis-à-vis the Company.
(b) Executive
hereby releases, discharges, and covenants not to xxx the Company, its
predecessors, successors, subsidiaries, affiliates, divisions, assigns,
employees, officers, directors, shareholders, representatives, attorneys,
and
agents, collectively, separately, and severally (the “Company and its
Representatives”), from or for any and all state, local or federal claims,
causes of action, liabilities, debts, contracts, agreements, damages, losses,
costs, expenses, and judgments of every type and description whatsoever,
known
and unknown (including, but not limited to, claims arising under the Civil
Rights Act of 1964, as amended; 42 U.S.C. §1981; the Rehabilitation Act of 1973,
as amended; the Employee Retirement Income Security Act of 1974, as amended;
the
Fair Labor Standards Act of 1938, as amended; and the Americans with
Disabilities Act; and claims of breach of contract, breach of covenant of
good
faith and fair dealing and wrongful termination of employment; and claims
for
bonus, benefits, reinstatement or attorneys’ fees)(collectively, “Claims”) which
he, his heirs, administrators, executors, personal representatives,
beneficiaries, agents, and assigns, collectively, separately or severally
(“Executive and his Representatives”), has had, now has or may have or claim to
have against the Company and its Representatives.
(c) If
a
court has reached a final determination that Executive or his Representatives
have breached this Agreement by filing a lawsuit, action or claim against
the
Company or its Representatives asserting any of the Claims released herein,
(i)
Executive will hold the Company harmless and reimburse the Company for the
full
amount of any and all expenses, including any costs and reasonable attorneys’
fees, associated with defending such action, and (ii) the Company shall be
entitled to cancel any unexercised portion of the option shares issued to
Executive pursuant to a Stock Option Agreement dated September 22, 2005 (the
“Option”).
Section
5.14 In
consideration of this Agreement and other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree that the prior Employment Agreement between the Company and the Executive
has been terminated effective as of the date hereof and is no longer in force
and effect.
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11
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed and delivered
as
of the date first above written.
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THE
COMPANY:
MARKET
CENTRAL, INC. d/b/a SCIENTIGO, INC.
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Its:
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| EXECUTIVE: | ||
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Print Name: XXXXXXXX X. XXXXX |
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