As filed with the Securities and Exchange Commission on August 5, 2009  
Registration No. 333-155341

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

Pre-Effective Amendment No. 5
to
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 

 
VYSTAR CORPORATION
(Exact name of registrant as specified in its charter)
 
Georgia
 
8731
 
20-2027731
(State or other jurisdiction of
incorporation or organization)
 
(Primary Standard Industrial
Classification Code Number)  
 
(I.R.S. Employer
Identification Number)  
 

 
 3235 Satellite Boulevard
Building 400, Suite 290
Duluth, GA 30096
(770) 965-0383
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
 

 
William Doyle
Chief Executive Officer
3235 Satellite Boulevard
Building 400, Suite 290
Duluth, GA 30096
(770) 965-0383
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
 

 
Copy to:
Gerald L. Baxter, Esq.
Greenberg Traurig, LLP
3290 Northside Parkway, Suite 400
Atlanta, GA 30327
(678) 553-2430
 

 
Approximate date of commencement of proposed sale to public:   As soon as practicable after this Registration Statement is declared effective.
 

 
 
 

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.   x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering.   o                
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering.   o               
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer
£
Accelerated filer
£
Non-accelerated filer
£
Smaller reporting company
x
   
(Do not check if a smaller reporting company)
 

CALCULATION OF REGISTRATION FEE
 
Title of Each Class of
Securities to be Registered
 
Amount to be
Registered
   
Proposed Maximum Aggregate
Offering Price Per Unit
   
Proposed Maximum
Aggregate Offering Price (1)
   
Amount of Registration
Fee
 
Common Stock
   
4,803,338
   
$
2.00
(1)
 
$
9,606,676
(1)
 
$
536.05
 
 
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.  Previously paid.
 
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.  

 
 

 

PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
 
This Amendment to Part II is being filed solely for the purpose of amending the Exhibit Index below and adding final versions of all Exhibits to the extent not previously filed as indicated in the Exhibit Index.

Item 13.   Other Expenses of Issuance and Distribution.
 
The following table indicates the expenses to be incurred in connection with the distribution and resale offering described in this Registration Statement, other than underwriting discounts and commissions, all of which will be paid by the Registrant. All amounts are estimated except the Securities and Exchange Commission registration fee and the Financial Industry Regulatory Authority fee.
 
  
 
Amount
 
       
Securities and Exchange Commission registration fee
 
$
536
 
Accountants’ fees and expenses
   
32,000
 
Legal fees and expenses
   
200,000
 
Transfer Agent’s fees and expenses
   
20,000
 
Printing and engraving expenses
   
10,000
 
Miscellaneous
   
  10,000
 
Total Expenses
 
$
272,536
 
 
Item 14.   Indemnification of Directors and Officers.
 
As permitted by Georgia law, provisions in our articles of incorporation and bylaws limit or eliminate the personal liability of our directors. Our articles of incorporation and bylaws limit the liability of directors to the maximum extent permitted by Georgia law. Georgia law provides that directors of a corporation will not be personally liable for monetary damages for breaches of their fiduciary duties as directors, except liability for:
 
·
any breach of the director’s duty of loyalty to us or our shareholders;
 
·
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
 
·
any unlawful payments related to dividends or unlawful stock repurchases, redemptions or other distributions; or
 
·
any transaction from which the director derived an improper personal benefit.
 
These limitations do not apply to liabilities arising under federal securities laws and do not affect the availability of equitable remedies, including injunctive relief or rescission. If Georgia law is amended to authorize the further elimination or limiting of a director, then the liability of our directors will be eliminated or limited to the fullest extent permitted by Georgia law as so amended.

As permitted by Georgia law, our articles of incorporation and bylaws also provide that:
 
·
we will indemnify our directors and officers to the fullest extent permitted by law;
 
· 
we may indemnify our other employees and other agents to the same extent that we indemnify our officers and directors, unless otherwise determined by the board of directors; and
 
· 
we will advance expenses to our directors and executive officers in connection with legal proceedings in connection with a legal proceeding to the fullest extent permitted by law.
 
 
II-1

 
 
The indemnification provisions contained in our articles of incorporation and bylaws are not exclusive.
 
The Registrant maintains a general liability insurance policy which covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
 
Item 15.   Recent Sales of Unregistered Securities.
 
Set forth below is information regarding shares of common stock, warrants and options to purchase common stock issued by the Registrant within the past three years that were not registered under the Securities Act of 1933, as amended, the Securities Act. Also included is the consideration, if any, received by the Registrant for such shares, warrants and options and information relating to the section of the Securities Act, or rule of the Securities and Exchange Commission, under which exemption from registration was claimed.
 
(a)   Common Stock and Warrant Financings  
 
From December 2005 through July 2007, the Registrant issued 1,430,632 shares of its common stock at a price of $1.50 per share. In connection with such offering, the Registrant issued one warrant to purchase one share of common stock at an exercise price of $.50 per share for each share of common stock purchased. From October 2006 through May 2008, the Registrant issued 1,198,066 shares of common stock upon the exercise of such warrants (and warrants issued prior to December 2005) at $.50 per share.
 
From May 2008 through May 2009, the Registrant issued 1,477,000 shares of its common stock at a price of $2.00 per share. In connection with such offering, the Registrant issued one warrant to purchase one share of common stock at an exercise price of $1.00 per share for each two shares of common stock purchased. In September 2008, the Registrant issued 5,000 shares of common stock upon the exercise of such warrants at $1.00 per share.
 
From June 2006 through May 28, 2009 the Registrant issued 164,902 shares of its common stock for services rendered to the Registrant.

(b)   Stock Option Grants
 
Since November 2005, the Registrant has issued options to certain employees and consultants to purchase an aggregate of 2,800,00 shares of common stock at exercise prices from $1.00 to $1.50. Through the date hereof, none of such options have been exercised.
 
(c)   Application of Securities Laws and Other Matters
 
No underwriters were involved in the foregoing sales of securities. The securities described in section (a) of this Item 15 were issued to investors in reliance upon the exemption from the registration requirements of the Securities Act, as set forth in Section 4(2) under the Securities Act and Regulation D promulgated thereunder, as applicable, relative to sales by an issuer not involving any public offering, to the extent an exemption from such registration was required.
 
The issuance of stock options as described in section (b) of this Item 15 were issued pursuant to written compensatory plans or arrangements with the Registrant’s employees, directors and consultants, in reliance on the exemption provided by Rule 701 promulgated under the Securities Act. All recipients either received adequate information about the Registrant or had access, through employment or other relationships, to such information.
 
All of the foregoing securities are deemed restricted securities for purposes of the Securities Act. All certificates representing the issued shares of common stock, warrants and options described in this Item 15 included appropriate legends setting forth that the securities had not been registered and the applicable restrictions on transfer.
 
 
II-2

 
 
Item 16.   Exhibits.
 
The exhibits to the Registration Statement are listed in the Exhibit Index attached hereto and incorporated by reference herein.
 
Item 17.   Undertakings.
 
(a)   The undersigned registrant hereby undertakes:
 
(1)   To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement;
 
(i)  To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
 
(ii)  To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
 
(iii)  To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

(2)   That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(3)   To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(4)   That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
 
(i)
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
 
SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Pre-Effective Amendment No. 5 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Duluth, State of Georgia, on this 5th day of August, 2009.
 
 
Vystar Corporation
 
       
 
By:
/s/ William R. Doyle  
    William R. Doyle  
   
Chairman, President and Chief Executive Officer
 
       
 
 
II-3

 
 
Each person whose signature appears below constitutes and appoints William R. Doyle his true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to this Pre-Effective Amendment No. 5 to Registration Statement on Form S-1, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post effective amendments thereto, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
 
Signature
 
Title
 
Date
         
/s/ WILLIAM R. DOYLE
 
Chairman, President, Chief Executive
Officer and Director (Principal Executive Officer)
 
August 5, 2009
 
       
         
/s/  LINDA S. HAMMOCK
 
Chief Financial Officer
(Principal Financial and Accounting Officer)
 
August 5, 2009
 
       
         
/s/ J. DOUGLAS CRAFT*
 
Director
 
August 5, 2009
 
       
         
/s/ MITSY Y. MANGUM*
 
Director
 
August 5, 2009
 
       
         
/s/ W. DEAN WATERS*
 
Director
 
August 5, 2009
 
 

*By William R. Doyle, attorney in fact.
 
 
II-4

 
 
Exhibit Index *
 
* Some Exhibits have certain confidential information redacted pursuant to a request for confidential treatment

Exhibit
Number
 
Description
     
3.1
 
Articles of Incorporation of Vystar Acquisition Corporation (now named Vystar Corporation) dated December 17, 2003 (as amended) (previously filed)
     
3.2
 
Bylaws of Vystar Corporation (previously filed)
     
4.1
 
Specimen Certificate evidencing shares of Vystar common stock (previously filed)
     
4.2
 
Form of Share Subscription Agreements and Investment Letter (First Private Placement) (previously filed)
     
4.3
 
Form of Share Subscription Agreement and Investment Letter (Second Private Placement) (previously filed)
     
4.4
 
Form of Vystar Corporation Investor Questionnaire and Subscription Agreement (Third Private Placement) (previously filed)
     
5.1
 
Opinion of Greenberg Traurig LLP (previously filed)
     
10.1*
 
Manufacturing Agreement between Vystar Corporation and Revertex (Malaysia) Sdn. Bhd. effective April 1, 2008 (previously filed)
     
10.2*
 
Distributor Agreement among Vystar Corporation, Centrotrade Minerals & Metals, Inc. and Centrotrade Deutschland, GmbH dated January 6, 2009
     
10.3
 
Executive Employment Agreement between Vystar Corporation and William R. Doyle, dated November 11, 2008
     
10.4
 
Management Agreement dated January 31, 2008 between Universal Capital Management, Inc. and Vystar Corporation
     
10.5
 
Letter Agreement dated August 15, 2008 between Universal Capital Management, Inc. and Vystar Corporation
     
10.6
 
Addendum to Management Agreement dated February 29, 2008 between Universal Capital Management, Inc. and Vystar Corporation
     
10.7
 
Warrant Purchase Agreement dated January 31, 2008 between Universal Capital Management, Inc. and Vystar Corporation
     
10.8
 
Management Agreement dated April 30, 2008 between Universal Capital Management, Inc. and Vystar Corporation
     
10.9
 
Warrant Purchase Agreement dated April 30, 2008 between Universal Capital Management, Inc. and Vystar Corporation
     
10.10
 
Vystar Corporation 2004 Long-Term Compensation Plan, as amended
     
10.11
 
Employment Agreement between Vystar Corporation and Sandra Parker dated April 1, 2008
     
10.12
 
First Amendment to Employment Agreement dated July 1, 2009, between Vystar Corporation and Sandra Parker.
     
10.13
 
Note agreement between Vystar Corporation and Climax Global Energy, Inc. dated August 15, 2008
     
10.14
 
Lockup Agreement with Glen W. Smotherman dated July 30, 2009 (previously filed)
     
21.1
 
Subsidiaries of Vystar Corporation (previously filed)
     
23.1
 
Consent of Independent Registered Public Accounting Firm (previously filed)
     
23.2
 
Consent of Independent Registered Public Accounting Firm (previously filed)
     
23.3
 
Consent of Greenberg Traurig, LLP (included in Exhibit 5.1)
     
24.1
 
Powers of Attorney (included on signature page) (previously filed)
 
*
 Confidential treatment requested as to certain portions, which portions have been omitted and filed separately with the Securities and Exchange Commission.
 


 

CONFIDENTIAL TREATMENT REQUESTED
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THAT MATERIAL HAS BEEN FILED SEPARATELY

DISTRIBUTOR AGREEMENT

This Agreement (“Distributor Agreement” or “Agreement”), dated and effective as of January 6, 2009 (the “Effective Date”), is made and entered into by and between Vystar Corporation, a Georgia corporation, with an address of 3235 Satellite Blvd., Bldg. 400, Suite 290, Duluth, GA 30096 (“Company” or “Vystar”), and Centrotrade Minerals & Metals, Inc., a Delaware corporation with an address of 1317 Executive Boulevard, Suite 120, Chesapeake, VA 23320 and Centrotrade Deutschland, GmbH, a German company with an address of Koelner Strasse 10b 65760 Eschborn Germany  (individually and collectively referred to as “Distributor”).

ARTICLE 1   APPOINTMENT
 
Section 1.1   Term and Renewal
 
Company hereby appoints Distributor, and Distributor hereby accepts appointment, as ********** Distributor for the Company for its Vytex NRL™ products (“Products”) in the territory/ies defined in Schedule A.  ***********  This appointment is subject to the terms and conditions of this Agreement, is effective as of the Effective Date, and shall continue in effect until the end of the third (3 rd ) full calendar year following the Effective Date unless earlier terminated pursuant to Section 1.3 below.  This Agreement shall renew automatically for successive one (1)-year terms thereafter.  Terms may be changed at any time upon mutual agreement in writing.
 
Section 1.2   Category & Responsibilities
 
 (1)
In addition to the responsibilities set forth there and elsewhere in this Agreement, Distributor shall have the following responsibilities:
(a)
To use its best efforts to promote, market, and sell the Products for Company-branded Products located in the Territories pursuant to Schedule A.  Distributor shall accept shipments of such Products at Company’s ship point of Malaysia, pursuant to Section 3.6. The Company branding shall be pursuant to the Trademark Guidelines described in Schedule B;
(b)
To provide pre-sale, transactional and post sale (technical and logistical) functions including, but not limited to:
 
(i)
making and providing to potential customers reasonable quantities of sales literature relating to such Products available to Distributor; and
 
(ii)
providing such pre-sale functions as Company in its sole discretion shall permit; and
(iii)
sampling the Products as requested by end-user customers pursuant to the Sampling Agreement contained on Schedule E.  Distributor shall ensure that the Sampling Agreement in Schedule E is either executed by such end-user customers or is made an integral part of the contract and sample ordering between Distributor and end-user customer.
**********THESE PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

 
Distributor Agreement  –  Page 1

 
 

 

(c)
To maintain at its address an active place of business for sale of the Products
(d)
To maintain warehouse space that protects the Products from damage and deterioration consistent with: (i) Company’s handling and storage requirements discussed in Schedule C; (ii) the Product labels and packaging; and (iii) all federal and state laws and regulations;
(e)
To promote the Products as Distributor’s ********** low protein natural rubber latex product, and in all circumstances no less than equal to other comparable natural rubber latex or natural rubber latex substitute or synthetic products Distributor may carry in terms of product quality and customer value, giving ********** for the Products in responding to customer requests for proposals or bids for natural rubber latex and at least equal representation for synthetic or natural rubber latex substitute products, and providing Company representatives an equal opportunity to participate in presentations to potential customers, including presentations involving representatives of other companies;
(f)
To make no representations with respect to any given Product inconsistent with the specifications, documentation, and warranty from Company for the Product;
(g)
To promptly deliver ordered Products to customers only in Company’s original packaging or re-packaging approved by Company.  Distributor shall not deliver Products without a Company-approved user agreement and license being made part of the agreement between Distributor and end-user customer or delivered prior to or along with the shipment of Products delivered to end-user customers.  Distributor shall not otherwise use or distribute the Products (including temporarily or otherwise transferring to a third party) for its own use and purpose or for the use and purpose of others;
(h)
To purchase Products only from Company, or another authorized Company Distributor acting within the scope of its authority from Company, , or as otherwise mutually agreed;
(i)
To require that Distributor personnel participate in training for the Company Products, and to provide efficient and effective after-sale services, as described in the Company training, and in this Agreement and its Schedules;
(j)
To facilitate Product returns by such customers due to market withdrawals by Company, to ensure Product quality, appearance, and performance prior to redistribution, and to maintain records of all re-distributions and/or returns;
(k)
To provide Company with regular and accurate reports and information regarding Distributor’s sale and service of Products in the format and frequency requested by Company;
(l)
To maintain distribution records reflecting volumes sold to whom and otherwise sufficient to meet legal and regulatory requirements for recalls relating to the Products, as instructed by Company.  Distributor shall provide Company with these distribution reports quarterly;
(m)
To immediately notify Company of any concerns, comments or complaints from customers involving the safety, labeling, effectiveness, quality, performance, reliability or other problem with a Product by contacting Company pursuant to the Notice provisions contained herein.  Such notice shall include:
(i)
an explanation of the specific nature of each problem or issue; and
(ii)
the Product lot and batch number; and
(iii)
whether any alleged event involved any injuries or created the potential for injury;
(n) 
 To comply with local, municipal, state, and federal laws, and
(o)
To otherwise comply with all obligations and requirements of this Agreement and Company Policies, as distributed to Distributor, and which may be updated from time to time as described below.
**********THESE PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

 
Distributor Agreement  –  Page 2

 
 

 
 
(2)
Company reserves the right to sell any or all of its products in the Territories and elsewhere directly and/or to appoint other Distributors to sell any or all of its products in Distributor’s non-exclusive Territories. ********** Distributor reserves the right, subject to its obligations under this Agreement, to market and/or distribute any products of other manufacturers .
 
(3)
Company reserves the right to unilaterally amend, modify or supplement its Policies or adopt additional terms or Policies applicable to Distributors upon thirty (30) days written notice.  Each amended or new provision shall be deemed incorporated by reference herein, shall prevail over any conflicting prior provision, and apply to Distributor by the later of its effective date or the end of the thirty (30) day notice period.
 
(4)
In the event that Company sells Product directly, as provided for in Schedule A, and Company desires to utilize Distributor to receive Product from Company’s manufacturing facility and deliver Product to Company’s end-user customer, Company will so notify Distributor.  Company shall pay Distributor a fee-for-service rate consistent with Distributor’s then-current service rates. Each year of this Agreement, Distributor and Company shall negotiate what those fee-for-service rates for the handling and delivery of Product on behalf of Company shall be.
 
Section 1.3   Termination
 
(1)
This Agreement may be terminated, to the extent permitted by law, as follows:
 
(a)
by Company or Distributor, without cause and without regard to any other provision of this Agreement, by providing at least ninety (90) days written notice of termination to the other;
 
(b)
by Company or Distributor, if the other is in violation of any of its obligations under this Agreement, by providing at least thirty (30) days written notice of termination specifying the breach or violation for which termination will occur, but only if such breach or violation is not remedied within the notice period;
 
(c)
by either Party immediately by providing written notice of termination if the other Party, in the first Party’s reasonable judgment, engages in fraud or misrepresentation or violates Article 2, Section 5.1, Section 5.2, Section 5.3, or any other section or provision of this Agreement where a violation cannot be promptly remedied or which indicates within its text that failure to comply with it is immediate grounds for termination;
 
(d)
by Company or Distributor if voluntary or involuntary bankruptcy, arrangement of creditors, insolvency, or receivership proceedings are brought with respect to the other party and (if “voluntary”) not terminated within 30 days.
 
(2)
Upon termination,
 
(a)
Distributor shall immediately pay Company for all Products previously ordered and acknowledged by Company whether received by Distributor or not, but not yet paid for and for all other amounts owed to Company for any reason, whether otherwise immediately due or not (neither termination nor receipt of such payments shall limit Company’s other legal or equitable rights under this Agreement or otherwise)
 
(b)
Company shall have the option, but, subject to applicable law, not the obligation, to purchase Distributor’s remaining Product inventory at Distributor’s net cost Company costs, or at such other amount as may be agreed;
 
(c)
Distributor shall no longer in any manner represent or imply that it is a Company Distributor and, with respect to any person or entity who continues to believe, or acts as if it continues to believe, that Distributor is a Company Distributor, shall affirmatively notify said person or entity that Distributor is no longer a Company Distributor;
**********THESE PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

 
Distributor Agreement  –  Page 3

 
 

 

 
(d)
When this Agreement concludes for any reason, each party shall immediately return, or if not feasible to return, shall destroy and otherwise cease to use all Confidential and Proprietary Information, as defined herein, of the other party in its possession or control (electronic copies on non-removable media shall be erased and made incapable of recovery).
 
 (3)
Upon the issuance of a notice of termination by either Company or Distributor, Company may, in its discretion and without waiting for the end of the notice or cure period, refuse to accept or cancel or suspend an order or require payment in advance of shipment, cancel or suspend any pending orders or require payment in advance and may direct customers of Distributor to other Company Distributors and/or authorized re-sellers and/or may recommend to other Distributors that they call upon such customers.

(4)
The following parts of this Agreement survive expiration or termination of this Agreement: Article 2, ARTICLE 4, Section 5.2, and ARTICLE 6.

Section 1.4 Joint Marketing Activities

(1) Vystar and Distributor (and/or Distributor’s agents approved by Vystar) shall mutually market the Vytex natural rubber latex consistent with the training, education and literature Company provides to Distributor as provided above.

(2) Each party shall be fully responsible for the costs of its marketing materials for its marketing efforts.  In the event that the parties engage in joint efforts that result in joint marketing materials, the parties shall share equally in these costs unless otherwise expressly agreed by the parties.

(3) Each party shall provide to the other party sufficient documentation and training to facilitate each party’s marketing efforts under the licensing and non-disclosure requirements contained in this Agreement.

(4) Each Party hereby grants a limited, nonexclusive, world-wide, non-assignable and non-transferable, royalty-free license to each party’s trademarks and copyrights for the joint marketing and sales activities and materials, provided that the trademarks and marketing materials are not altered or modified from the parties’ approved versions.

(5) Each party shall only use marketing materials related to the other party that are approved by the other party.

(6) Distributor may make opportunities available to invite the Company representatives to marketing and sales meetings with potential customers with respect to the Products.  Company may make opportunities available to invite Distributor to such sales meetings with potential customers within Distributor’s exclusive Territories.  Each party shall make good faith efforts to attend such sales and marketing meetings.

ARTICLE 2   INTELLECTUAL PROPERTY
 
Section 2.1   Confidential & Proprietary Information
 
(1)
Confidential and Proprietary Information of a party includes information concerning its (or any of its affiliated entities) business (including, but not limited to, trade secrets, systems, manufacturing or other processes, technical data and test reports, computer software programs, procedures, prices, pricing policies, discounts, terms of sale, sales data, marketing plans or strategies, customer information, names of customers, manuals and documentation, confidential reports and communications), financial condition, data supplied by Company for technical support, testing, operation and maintenance of its products, or any other information identified by a party in writing upon disclosure as being confidential information or proprietary information.   The terms of this Agreement and its Schedules shall be considered Confidential and Proprietary Information.

 
Distributor Agreement  –  Page 4

 
 

 

 
(2)
Each party agrees that it shall not permit (or permit its employees, agents, affiliates or related entities to permit) the duplication or disclosure of any Confidential and Proprietary Information of the other party to any person (other than an employee of the party who must have such information for the performance of his obligations hereunder, and who agrees, in writing, not to disclose such information), unless such duplication, use or disclosure is specifically authorized by the other party in writing.
 
(3)
Confidential and Proprietary Information does not include information of a party (the “Disclosing Party”) that:
 
(a)
is or becomes publicly available and confirmed through no fault of the non-Disclosing Party;
 
(b)
is rightfully obtained by the non-Disclosing party from an unrelated source not in violation of a non-disclosure obligation; is disclosed with the written consent of the Disclosing Party; or
 
(c)
is disclosed pursuant to court order or other legal compulsion (in which case, however, the non-Disclosing Party who may be compelled to disclose the information shall advise the Disclosing Party of the possibility of disclosure and cooperate with the Disclosing Party in opposing disclosure if the Disclosing  Party so desires).
 
(4)
Distributor shall treat the terms of this Agreement as Confidential & Proprietary Information of Company, but may disclose the terms as required to lenders, counsel, auditors, or others having legitimate business interests in the content upon a commitment of said persons or entities to be bound by the terms of this Section.  Distributor shall be responsible to Company for any breaches by any such persons or entities of such provisions.
 
Section 2.2   Documentation & Distributor End-Customer Licenses
 
Distributor acknowledges that the purchase of any Product includes a license to use the Product pursuant to Company licensing and other terms for the sale and use of the Product.  Distributor shall have the right to use this license only to the extent that Distributor requires in order to sell and repackage said Products pursuant to Company approval and the terms of this Agreement.  The license must be transferred to a permitted purchaser of said Product, and Distributor must require the end-user customer to execute and/or acknowledge agreement to the license and/or Product purchase agreement provided to Distributor by Company, attached hereto as Schedule D.  Distributor shall not (and shall not authorize any third party to) copy, disassemble or reverse engineer, or otherwise use Product for any purpose other than use or sale for the manufacture of an end consumer product, and shall not make copies or make media translations of the documentation for any Products except as allowed by Company in writing.  Distributor agrees to take commercially reasonable steps to prevent its own employees and agents from allowing access to such documentation other than as part of a Product that is sold in compliance with this Distributor Agreement.

 
Distributor Agreement  –  Page 5

 
 

 

Distributor shall not make any modifications to the end user or sub-contractor Distributor licenses or other documentation without the prior written consent of Company.   Distributor acknowledges that the Products may be used for raw material for the manufacture of medical devices subject to Federal and other medical device regulations (“Regulations”).  Any tampering, alteration or technical service without proper training, certification, and prior authorization from Company could implicate these Regulations.  Such activities may also result in the voiding of the Products’ warranty.  If Distributor modifies, causes modification to be made, or fails to comply with the storage ,shipment and handling requirements contained in this Agreement without the prior written consent of Company, Distributor shall indemnify and hold Company harmless against damages, costs and expenses (including, without limitation, reasonable attorney’s fees and costs of suit) resulting from the defense and settlement of any claim by a third party that Customer’s or Distributor's use or mishandling violates any regulation or law or infringes any intellectual property rights of such claiming party.  The provisions contained in this paragraph shall survive termination or expiration of this Agreement.  Distributor shall require that any end-user customer to whom Distributor sells Products abides by the terms contained in this paragraph.
 
Section 2.3   Labeling & Marketing Trademarks
 
Company hereby grants to Distributor a non-exclusive license to use the Company trademarks, both the name and the stylized form as used by the Company from time to time, and the applicable Product trademarks (collectively, the “Trademarks”) solely in connection with the advertising, promotion and repackaging of the Products. Distributor’s use shall be strictly in accordance with Company’s policies regarding advertising, labeling and trademark usage, attached hereto as Schedule B, and all uses shall inure to the benefit of Company.  Company shall have the right to monitor the quality of the Products and all uses of Trademarks by Distributor.  Distributor shall provide Company with copies of any and all promotional, advertising, sales or other materials using Company trademarks or product names prior to publication, use and distribution.

Except to the extent set forth above in this paragraph regarding the right to “use” Company trademarks, Distributor shall have no right whatsoever in or to any trademark, trade name, or copyright of Company.  Distributor shall not misuse, alter, remove, obliterate, deface, change, replace, or apply any labeling or trademark, copyright or other proprietary notices including any patent, trademark, copyright or other proprietary notice of Company used on or in connection with Products, documentation and other related materials supplied to Distributor under this Agreement.
 
Section 2.4   Ownership
 
Patents, trademarks, copyrights, trade secrets, documentation and any other intellectual and/or proprietary property and information pertaining to or included with the Products, whether in original form or any derivative works, are acknowledged by Distributor to be valuable trade secrets and the exclusive property of Company and/or its suppliers, and neither Distributor nor any customer shall have or gain any right, title, interest in or to or a license in any such property except where expressly assigned or granted in writing by Company hereunder.

Company maintains and retains exclusively all proprietary rights to any Products specified in this Agreement and to all discoveries, inventions, patents, copyrights and other rights arising out of work done by Company or Distributor in connection with this Agreement and to any and all products developed by Company or Distributor as a result thereof, including the sole right to manufacture, reproduce, sell and license any and all such products.  Distributor shall not, either on its behalf or on behalf of others, register or attempt to register or make any claim of ownership adverse to Company regarding any of the patents, trademarks, copyrights or intellectual property rights of Company or any other rights resembling those of Company.

Distributor shall promptly report to Company any infringement of which Distributor may become aware in connection with the patents, trademarks, copyrights or other intellectual property rights of Company pertaining to the Products.  Company shall have the sole discretion to pursue any such infringements.  If Company pursues such infringements, Distributor shall cooperate with Company as requested.

 
Distributor Agreement  –  Page 6

 
 

 

ARTICLE 3 ORDERS, CREDIT, SECURITY INTEREST, PAYMENT, SHIPMENT, RETURNS & PRICING
 
Section 3.1        Orders, Forecasts & Minimums
 
Distributor shall place orders with Company as desired and is required to supply Distributor’s end-user customers with Product.  Within the first eighteen (18) months of this Agreement, Distributor and Company shall meet to determine ********** described in Schedule A. Thereafter, if Distributor fails to **********, Company may, in its sole discretion, ********** upon notice to Distributor.    If no forecasts or other advance estimation is given to Company for Product orders, a Distributor order may take up to 90 days from Distributor order to delivery of Product.  In certain instances, at Company’s sole election, Company may provide to Distributor advance stock of Product for Distributor to have on-hand and available to be shipped to Distributor’s end-user customers without having to wait for the full order and shipment schedule from order placement to order receipt (“Advance Stock”).  Distributor will distribute this Advance Stock on a first-in, first-out basis and shall pay Company for such Product within thirty (30) days of shipment to Distributor’s end-user customers, or upon receipt of payment by Distributor, whichever occurs first.
 
Section 3.2   Credit
 
If Distributor intends to purchase Products on credit from Company, it must be approved by Company’s Credit Department.  If Distributor desires to seek such approval, it shall submit a Company Distributor credit application consisting of a completed and signed Company credit application form, a completed and signed Bank Information Release Form, current annual financial report as published (“Credit Documents”), and must authorize Company to investigate its credit.  Distributor shall supply such Credit Documents on an annual basis if requested by Company for the purposes of evaluating Distributor’s credit-worthiness and compliance with the terms of this Distributor Agreement.  Each order received from Distributor shall be subject to Company credit department approval, and shall not be considered binding or valid unless and until accepted in writing by the Company.  Any conflicting terms or conditions set forth in any purchase order or acknowledgment shall have no force or effect, notwithstanding Company’s acceptance of the order.
 
Section 3.3        Payments
 
Distributor shall place purchase orders with Company for all purchases of Products, which shall be payable upon thirty (30) days from date of invoice unless the Parties have mutually agreed otherwise.  Company in its sole discretion may move Distributor to a pre-payment or cash on delivery method of payment if Distributor is more than sixty (60) days delinquent or becomes thirty (30) days or more delinquent in its payments for more than two (2) out of any six (6) month period of time.
**********THESE PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

 
Distributor Agreement  –  Page 7

 
 

 
 
Section 3.4   Security Interest
 
(a)
Company shall retain a security interest in the Products and any related goods and documents until the complete satisfaction and discharge of any and all of Company’s present and future claims and receivables from the business relationship between Company and Distributor. (b) Distributor hereby undertakes to mark and store separately the Products with the security interest retained by Company (i.e., those subject to this reservation of title).  (c) Company shall become the owner of any new products produced in the case that Distributor processes, converts or transforms the Products subject to Company’s reservation or permits any of the foregoing, without incurring thereby any liability or any obligation.  In the case that Distributor combines, mixes, blends, commingles or processes the Products subject to this reservation of title with other goods owned by third parties or transforms them with other goods owned by third parties, Company shall acquire and be entitled to co-ownership of the new goods produced in the proportion to the contributing values of the goods subject to the reservation and the value of the other goods previously owned by third parties.  To that extent, the new goods are considered goods subject to reservation for the purposes of these terms and conditions.  (d) a sale of goods subject to reservation is only permitted in the ordinary course of business.  Any other dispositions, in particular pledging or chattel mortgaging of the goods subject to reservation are not permitted, and Distributor shall not allow any lien or encumbrances on such goods.  Any claims or receivables arising to the Distributor in connection with the goods subject to this reservation due to resale or other disposal or otherwise are hereby fully assigned to Company in advance by Distributor.  In the case of co-ownership, the assignment applies only to the share of the claim or receivable corresponding to Company’s co-ownership.  An onward sale or other disposal is only permitted if the assignment to Company and its and its other rights are maintained and not negatively affected thereby.  (e) Distributor is only authorized to collect the claims and receivables assigned to Company in the ordinary course of business and subject to revocation by Company at any time.  On Company’s request, Distributor shall inform its debtors of the assignment in the proper form.  In addition, Distributor grants Company an irrevocable power of attorney so that Company is likewise entitled and authorized to do so at any time.  (f) Distributor’s authorization to dispose, to process, to transform, to combine, to mix, and to blend the goods subject to this reservation, and to collect the claims and receivables assigned hereby, shall terminate ipso jure upon its non-compliance with the terms of payment, in the case of unauthorized disposals or of any protest in connection with checks, bills or letters of exchange, or default on any other payment obligation or if Distributor files a voluntary bankruptcy petition or if insolvency proceedings are instituted against Distributor, or if a substantial deterioration of the customer’s financial situation becomes apparent or known to Company.  In such cases, Company shall be entitled to take immediate possession of the goods subject to reservation, for this purpose or at any time upon reasonable request (which may be up to 72 hours from Company request) Company may enter Distributor’s premises, and to obtain all information reasonably required by Company on the goods subject to reservation and, if applicable, on claims or receivables which have arisen or may result from their resale or other disposition, as well as to inspect Distributor’s records, if this serves to secure Company’s rights.  Acceptance of the goods, receivables or respective claims by Company involves a rescission of the contract only if explicitly stated in writing by Company.  (g) Should the value of the collateral or security given by Distributor to Company or retained by Company hereunder exceed the value of Company’s claims, rights and receivables as a whole, by more than 20%, Company shall release upon Distributor’s request an appropriate amount of any such surplus of collateral. (h) Company may file or record this Agreement or a copy of this Agreement or financing statement(s), pursuant to the Uniform Commercial Code, to perfect, continue, release, assign, terminate and/or amend its security interest.  (i) When all such amounts have been paid in full, Company shall, at Distributor’s written request, execute financing statements to terminate Company’s security interest in the Products.  (j) Distributor will provide additional security as may, from time to time, be deemed necessary by Company’s credit department.  Such security may include, but is not limited to, personal guarantee(s), security agreement(s) and letter(s) of credit.

 
Distributor Agreement  –  Page 8

 
 

 
 
Section 3.5   Past Due Payments to Company
 
All amounts more than thirty days past due from Distributor to Company will be subject to a service charge of 1.5% per month or the maximum allowed by law measured from the date the amount was due.  Amounts due from Distributor to Company shall not be subject to set-off against credits or payments due from Company to Distributor.
 
Section 3.6    Shipment
All shipments of Product to Distributor will be F.O.B. Malaysia – 1 st loading point.  Distributor shall be responsible for the cost and payment of all shipments.  Upon mutual agreement by the Parties, Company may pre-pay for shipping and charge to Distributor on its invoices. In the event that Distributor requires shipping methods out of the ordinary course of business for urgent situations or otherwise (e.g., air shipments), Distributor shall be responsible for the costs and risk of loss of such shipments.
 
Section 3.7 Returns and End User Claims
 
Generally, Products are sold without return privileges.  Distributor shall inspect the Products for any physical and observable defects within forty-eight (48) hours of receipt to determine if Products are damaged.  If Products are damaged, as determined within this  forty-eight (48) hour period, Distributor shall notify Company within such forty-eight (48) hour period for instructions on either return or disposal of the Product. Distributor may return to Company Product returned to Distributor which does not meet the published specifications provided Distributor complies with the following requirements: (a) Distributor requires its end-user customers to inspect Product shipped to such end user customers within seven (7) days of such end-user customer receipt and notify Distributor within that seven (7) day period of such Product rejection; (b) Distributor requires that all claims made by its end-user customers in connection with Products be in writing to Distributor disclosing specific information regarding claim of defect or nonconformance, including test results. (c) Distributor notifies Company of any such Product rejection by Distributor’s end-user customers within forty-eight (48) hours of receiving notice of such rejection by Distributor’s end-user customer; (d) Distributor shall require that all Products must be in original condition, unadulterated or altered; (e) Distributor shall require that its end-user customers comply with the storage and handling requirements described in Schedule C; and (f) Distributor complied with the requirements in Schedule C with respect to such rejected Product. Distributor shall be required to retain a return-authorization for all returns.  Failure to make such claim within the stated period or prior to the alteration of Products shall constitute an irrevocable acceptance of the Products and deemed conforming without return privileges.
 
Section 3.8  Pricing
 
Pricing shall be based on a cost plus model.

ARTICLE 4   WARRANTIES AND LIMITATIONS
 
Section 4.1   Warranties
 
UNLESS OTHERWISE AGREED IN WRITING, THE WARRANTY (INCLUDING THE REMEDY FOR BREACH THEREOF) ON A PRODUCT PURCHASED BY DISTRIBUTOR, THAT IS SOLD WITH WRITTEN DOCUMENTATION DELIVERED WITH THE PRODUCT THAT INCLUDES A SPECIFIC WARRANTY SHALL BE THE WARRANTY STATED THEREIN, AND, IF THERE IS NO DOCUMENTATION OR NO SPECIFIC WARRANTY WITHIN THE DOCUMENTATION DELIVERED WITH THE PRODUCT, SHALL BE THE PUBLICLY PUBLISHED WARRANTY SET FORTH FOR THE PRODUCT IN THE COMPANY CATALOG OR WEBSITE IN EFFECT AT THE TIME OF THE SALE OR AS OTHERWISE IDENTIFIED IN THIS AGREEMENT OR THE SCHEDULES.  ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, ARE EXCLUDED.

 
Distributor Agreement  –  Page 9

 
 

 
 
Section 4.2   Limitations of Liability
 
COMPANY SHALL NOT BE LIABLE TO DISTRIBUTOR (OR ANYONE CLAIMING THROUGH DISTRIBUTOR) FOR DAMAGES FOR INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS).  THIS EXCLUSION APPLIES REGARDLESS OF WHETHER THE ACTION LIES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER FORM.  IT APPLIES TO ANY CLAIM RELATED TO ANY DEGREE TO THIS AGREEMENT AND TO ANY CLAIM RELATED TO THE SALE OR PURCHASE OF A SPECIFIC PRODUCT OR SERVICE FROM COMPANY, AND APPLIES EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  COMPANY SHALL IN NO CASE BE LIABLE TO DISTRIBUTOR (OR ANYONE CLAIMING THROUGH DISTRIBUTOR) ON A CLAIM RELATED TO A GIVEN PRODUCT OR SERVICE IN EXCESS OF THE AMOUNT ACTUALLY PAID BY DISTRIBUTOR FOR THAT PRODUCT, OR ON ANY OTHER KIND OF CLAIM IN EXCESS OF THE AMOUNT PAID BY DISTRIBUTOR TO COMPANY FOR THE SIX MONTHS PRIOR TO OCCURRENCE OF THE LAST EVENT WHICH GAVE RISE TO THE CLAIM.
 
Section 4.3   Indemnification
 
Distributor agrees to defend, indemnify and hold Company, its affiliates and their respective employees, officers, directors and stockholders harmless from and against any and all damages claimed by a third party as a result of actions by Distributor in violation of this Agreement.  Distributor agrees to defend, indemnify and hold Company, its affiliates and their respective employees, officers, directors and stockholders harmless from and against any and all damages for damages to property, bodily injury, death, or other injuries arising from the negligence or misconduct of Distributor or any person for whom Distributor is legally responsible, or has apparent responsibility, relating to the storage, handling, or sale of any of the Products, or otherwise.  Company agrees to defend, indemnify and hold Distributor, its affiliates and their respective employees, officers, directors and stockholders harmless from and against any and all damages arising from a claim of infringement of a United States patent, trademark, or copyright arising from the authorized sale by Distributor of one or more Products.  The party seeking indemnification in any case shall promptly give written notice to the other of the claim for which indemnification is sought and shall cooperate with the other party in the defense of such an action or suit.  The failure to give or delay in giving any such notice shall not limit the indemnifying party’s rights hereunder except to the extent it is prejudiced thereby.  The indemnifying party shall have the right, at its expense, to direct any such legal proceeding and the negotiation and settlement of any such claim or demand.  The indemnifying party shall have no liability for any settlement made without its consent or for any fees or expenses incurred by the other party after the indemnifying party begins directing the legal proceeding.

ARTICLE 5   MISCELLANEOUS
 
Section 5.1   Independent Contractor; No Property Rights
 
Distributor is not an agent, representative, partner, fiduciary or franchisee of Company and has no right to sell franchises or to become a franchisee under the laws of any state.  Nothing in this Agreement or any other agreement between the parties or in the course of business or course of performance between the parties shall make either party a representative, agent, joint venture, partner, fiduciary or franchisee of the other.  It is not intended by the Parties, and this Agreement shall not be deemed to confer any property or other rights onto Distributor beyond the terms contained herein.  Distributor shall not make any statements or representations to the contrary.  No party shall have any authority to legally bind the other in any way whatsoever.  In all of their respective performance hereunder, the parties are acting solely as independent contractors.

 
Distributor Agreement  –  Page 10

 
 

 
 
Section 5.2   Inspections & Audits
 
Company shall have the right within twenty-four (24) hours of Company’s request during normal business hours to inspect the Products in Distributor’s inventory, and to inspect and audit (i) Distributor’s storage and handling procedures, (ii) Distributor’s purchasing and sales records and other books and records, (iii) Distributor’s, warranty (and post-warranty if applicable) and other contracts and records regarding the Products, and (iv) Distributor’s documentation and procedures relating to information supplied by it to Company for purposes of any discount program or otherwise, all to determine Distributor’s compliance with this Agreement and with Company Policies and requirements.  Company shall be responsible for all third-party costs in conducting such audits.  Otherwise, each party shall bear their respective   internal administrative time and related internal costs incurred in connection with such inspections.  Distributor shall maintain its books and records necessary to verify such compliance for no less than seven years.  Such audit shall be conducted with reasonable notice during normal business hours and may be conducted by Company personnel or by independent agents selected by Company.  Following completion of the audit, Company may deduct from any credits due to Distributor the amount determined by the audit to be owed by Distributor to Company, along with interest on such amounts at the rate identified herein.  If insufficient credits exist to cover the deduction or Company elects not to deduct from credits, Distributor shall promptly transfer to Company funds necessary to cover the amount owed to Company and make Company whole.   Distributor and Company shall reconcile account receivables and inventory accounts monthly or at time increments to be mutually agreed upon.
 
Section 5.3   Assignment and Transfer of Control
 
Distributor may not assign or delegate, or permit the assignment or delegation of this Agreement, in whole or in part, may not accept assignment or delegation by another authorized Company Distributor of its Distributor agreement to Distributor, and may not acquire authorized shipment points of another authorized Company Distributor without the express written consent of Company.  Company has complete discretion regarding the criteria and terms and conditions under which Company may permit assignment of this Agreement, or permit another authorized Company Distributor to assign its Distributor agreement to Distributor, or permit the transfer of authorized shipment points from another authorized Company Distributor.
 
Section 5.4   Insurance
 
Distributor shall procure and maintain in force at its expense during the term of the Distributor Agreement a comprehensive general liability insurance policy with a limit of not less than ********** inclusive per occurrence and an aggregate liability limit of not less than **********.  Such policy shall not be canceled without at least thirty (30) days prior notice to Company.  Distributor shall, on request, provide a certificate of such coverage to Company and shall name Company as an additional insured under this policy.
**********THESE PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

 
Distributor Agreement  –  Page 11

 
 

 
 
Section 5.5   Taxes
 
Sales, use, property and other taxes measured by sales, receipts or otherwise due as a result of, or in connection with, the sale, license, or transfer of the Products are not included in the prices on Company’s pricing, and shall be the responsibility of Distributor for the purchase of such Products.  Where applicable, such taxes will be billed unless a valid exemption certificate is furnished.  Taxes will be billed on the full price of the items purchased, i.e., the amount prior to discounts due to trade-ins, credits, etc.  Where a valid exemption certificate is furnished, tax will not be billed unless Company can determine that the purchase will be used in a taxable manner.  Omission of tax should not be construed as a basis for exemption.  If items purchased are used in a taxable manner, and no tax is billed by Company, Distributor is required to remit applicable taxes directly to the taxing authorities.  Distributor shall pay all applicable state and local taxes and all shipping and handling charges.  Distributor shall promptly reimburse Company for any such charges paid by Company.  Distributor will be responsible for collecting any taxes due resulting from the re-sale of Product to its end-user customers.

ARTICLE 6   ITEMS OF LAW
 
Section 6.1   Construction & Interpretation
 
This Agreement, together with the attached Schedules, contains the entire agreement between Company and Distributor with respect to the subject matter.  All prior oral and written arrangements, understandings, discussions, representations, demonstrations, negotiations, and correspondence are merged into and superseded by this Agreement.  If any provision of this Agreement is held to be illegal or invalid or unenforceable by any court or arbitrator of competent jurisdiction, such provision shall be deemed severed and deleted, without affecting the validity of the remaining provisions of this Agreement.  The failure of any party at any time to require performance by any other party of any provision of this Agreement shall not affect in any way the full right to require such performance at any time thereafter, nor shall the waiver by any party of the breach of any provision hereof be held to be a waiver of the provision itself.  All titles and captions, as well as the Table of Contents hereto, are for convenience only and are not to be used in interpretation or construction of this Agreement.  The terms and conditions of this Agreement shall extend to, and inure to the benefit of, and be binding upon the respective permitted successors and assigns of the parties, including shareholders in liquidation.
 
Section 6.2   Law & Disputes
 
This Agreement shall be deemed to have been entered into and executed in Georgia and shall be construed, interpreted, performed, and enforced in all respects (including choice of law principles) in accordance with the laws of Georgia.  Any legal proceedings relating in any manner to this Agreement or the relationship between the parties shall be brought in Atlanta, Georgia.  Distributor irrevocably waives any objection which it may now or hereafter have to such venue, and further irrevocably waives any claim that any such proceedings are in an inconvenient forum.  If Company places Distributor’s account in the hands of an agency or attorney for collection, Distributor will be responsible for the expenses, fees, and costs of collection, including, without limitation, agency and attorney fees and court costs incurred to the extent permitted by law.  In the event of a breach of any provision in ARTICLE 2, Section 5.2 (Inspections and Audits), or Section 1.2(1)(h) (Representations of Warranties) by a party, the other party shall, in addition to any other remedies available under this Agreement or in law or equity, be entitled to obtain injunctive relief to require compliance, and costs incurred in obtaining such injunctive relief, and such damages as a court of competent jurisdiction shall award.  EACH PARTY WAIVES ITS RIGHT TO TRIAL BY JURY.
 
Section 6.3   Notices
 
All notices required by this Agreement shall be in writing and be sent (i) by certified mail, return receipt requested; (ii) by hand; or (iii) by a nationally recognized overnight courier service.  A notice shall be effective upon receipt.  A party may change the addresses for notice to it by written notice in compliance with this paragraph.  Notices shall be sent to the following addresses as appropriate:

 
Distributor Agreement  –  Page 12

 
 

 

To Distributor:
« Centrotrade Minerals & Metals, Inc »
1317 Executive Boulevard, Suite 120
 Chesapeake, VA 23320

To Company:
Vystar Corporation
3235 Satellite Blvd
Bldg. 400, Suite 290
Duluth, GA 30096
 
Section 6.4   Force Majeure
 
Force Majeure is defined as any circumstance beyond the reasonable control of the party including, without limitation, fire, explosion, or other casualty, power failure, acts of God, war, revolution, civil commotion, or acts of public enemies, any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body, or labor unrest including without limitation, strikes, slowdowns, picketing or boycotts.  If either party’s performance under this Agreement is interfered with by reason of a Force Majeure, that party shall be excused from such performance on a day-to-day basis; the excusal shall not apply to Distributor’s obligation to make payment for sums due.
 
Section 6.5   Counterparts
 
This Agreement may be executed in one or more identical counterparts, and shall become effective when one or more identical counterparts have been signed by each of the parties.

IN WITNESS WHEREOF, this Agreement is made and entered into as of the day and year first above written.  The person signing this Agreement on behalf of Distributor personally warrants that he or she has authority to sign this Agreement and bind Distributor to observe and perform as required by this Agreement.
 
Distributor Centrotrade Minerals & Metals, Inc  
     
 
By:
   
       
 
Print Name: ____________________________________________
 
     
 
Title:
   
       
 
Date:
   

   
Centrotrade Deutschland GmbH
     
 
By:
 
   
(Signature)

 
Name:
 
   
(Print)
     
 
Title:
 
     
 
Date:
 

 
Distributor Agreement  –  Page 13

 
 

 

Company:
VYSTAR CORPORATION
   
 
By:
 
     
 
Print Name: ___________________________________________________
   
 
Title:
 
     
 
Date:
 

 
Distributor Agreement  –  Page 14

 
 

 

SCHEDULES

 
Distributor Agreement  –  Page 15

 
 

 
 
SCHEDULE A  –  TERRITORIES

**********
·
North America
Canada
United States of America & its Territories
Mexico
·
Europe

To determine where a shipment or sale is located – ********** – the location of the sale shall be determined by the manufacturing location or “ship-to” location for that sale.

**********   Vystar sales to and by those companies with whom Vystar has a relationship existing as of the Effective Date of the Agreement, Revertex Malaysia and its corporate affiliates who shall have authorization to sell any Revertex-manufactured pre-vulcanized version of Vytex Products worldwide,  and any others as may be directed by Company with notice to Distributor.

**********
Rest of World
Distributor Authorized Signatures
 
 
 
CENTROTRADE MINERALS & METALS, INC
 
 
CENTROTRADE DEUTSCHLAND GMBH
 
Company Authorized Signature

**********THESE PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

 
Distributor Agreement  –  Page 16

 
 

 
 
SCHEDULE B  –  Trademark Usage Guidelines

Distributor shall place the following trademark label on all packaging and/or bills of lading shipping the Vytex™ NRL. The size of this label shall be appropriate for the size of the packaging.  For example, for sample-sized shipments, the label shall be no smaller than 4 inches by 6 inches.  For 55 gallon drum-sized shipments, the Vytex label shall be no smaller than 8 inches by 12 inches.  Vystar shall provide Distributor with the graphics for such labeling.

If the Vytex order is in a larger sized vessel than a 55-gallon drum, the Vytex label shall be placed on the bill of lading accompanying that shipment.  The Vytex trademark label on the bills of lading shall be no smaller than 2 inches by 3 inches.

Distributor shall also comply with the following additional usage requirements:
 
1.
The Vytex logo must be present on all Vytex NRL products and samples.
 
2.
Distributor must not obstruct the Vytex logo by placing any other elements either on or too close to the logo.
 
3.
The Vytex oval shape must not be used as a decorative element.
 
4.
Distributor must not add any trademark symbol to any of the Vytex or other Vystar products or in conjunction with the Vytex or Vystar logos that do not already appear there from Vystar.
 
5.
Distributor may only use the Vystar and Vytex logo or oval symbol in connection with the packing and shipping of Vytex consistent with the terms in this Manufacturing Agreement.

Distributor may use the Vystar and Vytex trademarks only as provided for herein unless expressly approved in writing by Vystar.

The following is the Vytex logo.

Vytex™ and related marks are trademarks of Vystar Corporation, Duluth, Ga

 
2

 

The following is the Vytex logo as it should be used on product labeling.
 

 
3

 
 
SCHEDULE C  –  Shipping, Storage & Handling Requirements
 
1. Vytex NRL has colloidal behavior similar to normal NR centrifuged latex concentrates.  It can be adversely affected if the Vytex NRL is exposed to extreme temperatures, excessive shear and chemical contamination.  Vytex NRL should be stored under a covered roof and away from exposure to direct sunlight.
 
2. Temperature Vytex NRL should be stored at a storage temperature between 10 to 30 ° C.  Excess heat increases the Brownian motion and could result in microcoagulum and coagulum due to particle agglomeration.  Additionally, heat evaporates water and the ammonia in Vytex NRL which would result in a drop in pH that could potentially lead to Vytex NRL destabilization.
 
3. Mechanical Shear Vytex NRL is a colloidally stable compound largely due to the removal of species vulnerable to free radical breakdown.  The stability of Vytex NRL can be overcome if product is subjected to excessive mechanical shear.  When handling Vytex NRL, gravity feed should be used.  When gravity feed is not applicable, single or double diaphragm pumps which produce the lowest level of shear are to be used. Rotor/stator shear or piston pumps must be avoided. Where pump facilities are not available, the practice of using compressed air applied to the barrel is sometimes resorted to. This is a potential safety hazard as the plastic barrels or totes used to supply the latex can on occasion rupture.
 
4. Chemical Destabilization of Vytex NRL would result when the latex is exposed to calcium and magnesium ions commonly found in hard water.  Deionised (DI) ammoniated water should be used when diluting Vytex NRL. DI ammoniated water is to be used when compounding Vytex NRL.
 
5.  Shelf Life Vytex NRL has a shelf life of 6 months when kept away from extreme temperatures.  As previously recorded, the optimum storage temperature is 10 to 30 ° C. Excessive loss of ammonia can occur during storage and possibly lead to destabilization of Vytex NRL.  The pH should be monitored and if the pH drops below 10.0, it should be adjusted to 10.5 with an approved ammonia hydroxide solution.
 
6.  Drum Storage Vytex NRL should be stored and transported in 200Kg/205 litre metal (Bitumen or Epoxy coated) or plastic barrels which are with a mouth for filling and removal of contents.  Drums should be agitated by rolling or with a collapsible stirrer before drawing samples or before use.  For drums being rolled, 20 minutes every 3 to 4 days is optimum.
 
7.  Storage Tanks Vytex NRL should be stored in tanks made from mild steel (MS), stainless steel (SS) or glass fiber reinforced plastics (FRP).  Vytex NRL stored in mild steel tanks, the MS tanks must be given a protective coating to prevent corrosion and contamination of Vytex NRL.  Paraffin wax and epoxy resin based coating materials could both be used.  Prior to coating, the tank surface must be cleaned (if possible sand blasted), dry and free of scale to prevent the lining from lifting.
 
8.  Storage Tank Cleaning Vytex storage tanks must be cleaned regularly and disinfected.  Disinfection is done on the storage tanks twice a year. 30% Formaldehyde solution is used as a disinfectant. If its use is not permitted, sodium hypochlorite can be used or any other permitted bactericide. The solution is left for 12-16 hours, removed and the tank must be cleaned with ammoniated DI water to remove all traces of the disinfectant.

 
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SCHEDULE D  –  “End User License Form”   The attached form shall be used to convey the use, manufacturing and sales license for all end-customers of Products sold by Distributor and its subcontractor distributors.
 
Vystar Corporation
VYTEX™ NRL
MANUFACTURER SALES & LICENSE AGREEMENT

As a condition precedent to receiving the Vytex natural rubber latex (“NRL”), the Customer (hereinafter referred to as “Customer” “You” or “Your”) expressly and implicitly agrees to the following terms and conditions for receipt, use and further processing using the Vytex™ NRL (“Agreement”).  This Agreement is made effective as of the date of Your receipt of the Vytex (“Effective Date”) and shall constitute a binding contract between you and Vystar Corporation, a Georgia corporation with its principal place of business at 3235 Satellite Blvd., Bldg 400, Suite 290, Duluth, GA 30096 (“Vystar” “Company” or “Our”).   The parties hereto may be referred to individually as “Party” or collectively as “Parties.”

1.            Scope and Purpose.     The exclusive purpose for Your purchase of Vytex in its various forms (“Product”) is for further processing and/or manufacturing the Vytex NRL to create end product(s) for the exclusive purpose of sales and distribution of the end product(s) made with Vytex.

2.      Limited License; Ownership.
(a)   Subject to the terms of this Agreement, Company grants to Customer, and Customer accepts a non-transferable, non-exclusive, terminable license (i) to use the Vytex NRL only for the further processing and/or manufacturing of Vytex as a raw material to create an end product for Your sales and distribution, and (ii) to use any Documentation that may be provided by Company in connection with Customer’s use of the Vytex NRL in accordance with this Agreement.  Customer shall not cause, suffer or permit the modification, alteration, reverse engineering, decompilation or creation of derivative works using the Vytex NRL in any way or on any portion thereof beyond your standard compounding, processing and/or manufacturing processes in the ordinary course of your business.  Any derivative works, or other changes to the Vytex NRL shall be the sole and exclusive property of Company.
(b) Customer agrees that, except for the license rights granted in this Agreement, nothing in this Agreement gives Customer any right, title or interest in, to or under any Vytex NRL or Documentation or any intellectual property rights therein, and further agrees that the foregoing are the sole and exclusive property of Company.
(c) Customer shall not, and shall not permit its employees, representatives or agents to (i) move, sell, assign, lease, sublet, sublicense, transfer, pledge, transmit, display or disclose or make available to any third party the Vytex NRL or allow any third party to use any of the Vytex NRL or the Documentation, except as specifically permitted pursuant to this Agreement, or, (ii) copy or otherwise reproduce the Documentation (or any portion thereof) except as necessary for Customer's use, in accordance with the terms and conditions of this Agreement.  Each such copy, whether complete or partial, shall bear the same copyright notices and restrictive legends, if any, as are included in the material delivered to Customer.  All copies shall be the sole and exclusive property of Company and shall be subject to the terms and conditions of this Agreement.
 
3.      Labeling & Trademarks .  With labels, packaging and/or other collateral of sizes at least 1 inch by 1 inch, Customer must include the Vytex logo according to the Trademark and Labeling Use Requirements contained in Attachment 1 to this Agreement.  Company hereby grants to Customer a non-exclusive, limited, non-transferable, terminable license to use the Company trademarks, both the name and the stylized form as used by the Company from time to time, and the applicable Product trademarks (collectively, the “Trademarks”) solely in connection with the advertising, promotion and repackaging of the Products. Customer’s use shall be strictly in accordance with Company’s policies regarding advertising, labeling and trademark usage, attached hereto as Attachment 1, and all uses shall inure to the benefit of Company.  Company shall have the right to monitor the quality of the Products and all uses of Trademarks by Customer, and my revoke Customer’s license at any time in Company’s sole discretion if Company believes Customer has violated this provision.
Except to the extent set forth above in this paragraph regarding the right and license to “use” Company trademarks, Customer shall have no right whatsoever in or to any trademark, trade name, or copyright of Company.  Customer shall not misuse, alter, remove, obliterate, deface, change, replace, or apply any labeling or trademark, copyright or other   proprietary notices including any patent, trademark, copyright or other proprietary notice of Company used on or in connection with Products,   documentation and other related materials supplied to Customer under this   Agreement.  Failure of   Customer to comply with any provision of this paragraph is grounds for immediate termination of this Agreement.

4.        Confidentiality ; Nondisclosure .   Customer acknowledges the proprietary rights of Company in and to the Vytex NRL, the Documentation, and the trademarks, identifying symbols and other supporting material. This Agreement creates a confidential relationship between the parties, based upon which Company is willing to grant the above license, and provide certain proprietary information and knowledge to Customer.  Customer acknowledges and agrees that the use and further processing of the Vytex is furnished to Customer for the sole and exclusive use of Customer.  Except as specifically agreed to in this Agreement, Customer will not use, publish, disclose or otherwise divulge to any person, except as necessary to officers and employees of Customer, at any time, either during or after the termination of this Agreement, or permit its officers or employees to so divulge any such information regarding the Vytex NRL, without the prior written consent of an officer of Company. The provisions in this paragraph shall survive termination or expiration of this Agreement.

 
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5. Infringement Indemnification.   Company shall defend and indemnify and hold Customer harmless against any action brought against Customer to the extent that it is based on a claim that Vytex NRL, properly used within the scope of this Agreement, infringes a United States patent or copyright, provided Customer notifies Company promptly in writing of the action and gives Company the sole control of the defense, all negotiations and any settlement.  If Vytex NRL becomes, or is likely to become, the subject of an infringement claim, Company may, at its option, secure Customer’s right to continue using the Vytex NRL or replace or modify it to make it non-infringing with substantially similar functions and levels of performance.  If neither of these alternatives is reasonable available, Company may terminate this Agreement.  THIS PARAGRAPH STATES THE ENTIRE RESPONSIBILITY OF COMPANY CONCERNING PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHT INFRINGEMENT.

6.        Entire Understanding & Future Orders.   This Agreement (inclusive of any Attachments hereto which are all incorporated herein by reference) constitutes the entire agreement and sets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements, covenants, arrangements, discussions and negotiations with respect thereto.  Any conflicting terms or conditions set forth in any purchase order or acknowledgment shall have no force or effect, notwithstanding Company’s or other third party’s acceptance of the order. No modification, waiver or amendment of this Agreement shall be effective unless it is in writing and signed by an authorized signatory of Company and Customer.  This Agreement shall also apply to all future deliveries, purchases, orders and all other relations between the parties with respect to the subject matter hereof which may occur during the next five (5) years from the effective date of this Agreement, unless the Parties agree to and execute a separate agreement.

7.        Governing Law.   This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia without the application of the conflict of laws principles.  Any legal action or proceeding with respect to this Agreement shall be brought and maintained in the state or federal courts located in the city of Atlanta or County of Gwinnett, and, by execution and delivery of this Agreement, each Party hereby accepts for itself and in respect of its property, generally and unconditionally the jurisdiction of the aforesaid courts.  Each Party further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding.

8.    LIMITED WARRANTY/LIMITED LIABILITY. No warranties, whether express, implied or statutory, are made with respect to the Products except as expressly set forth in this Section. So long as Customer complies with the Shipping, Storage and Handling Requirements identified in Attachment 2 to this Agreement, for six (6) months from the date of manufacturer, Company warrants that the Vytex NRL will conform substantially to the specifications set forth in the certificate of analysis (“COA”) provided by Company to Customer with the Vytex NRL shipment.  Company’s sole obligation under this warranty shall be limited to replacing the Vytex NRL, without charge, during Company’s normal production and delivery schedule; provided the Vytex NRL has been inspected and rejected prior to accepting the Vytex NRL as provided in the Acceptance and Return provision stated herein. Excluded Items : This warranty does not cover circumstances beyond Company’s reasonable control (including but not limited to Customer and/or Customer handling, storage and transportation conditions and treatment or acts of God). All warranties and obligations of Company shall terminate if Customer fails to perform its obligations under this or any other agreement between the parties or fails to pay any charge otherwise due Company.
THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT WILL COMPANY BE LIABLE FOR: (1) LOST PROFITS OR LOST USE, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY INDIRECT, SPECIAL, OR PUNITIVE DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF CUSTOMER OR ANY OTHER PERSON HAS ADVISED COMPANY OR ANY OF ITS SUPPLIERS OR LICENSEES OF THE POSSIBILITY OF SUCH DAMAGES; (2) DAMAGE CAUSED BY CUSTOMER’S FAILURE TO PERFORM ITS RESPONSIBILITIES UNDER THIS AGREEMENT; (3) ALTERATIONS DONE WITHOUT THE PRIOR WRITTEN APPROVAL OF COMPANY; OR (4) USE OF VYTEX NRL IN A MANNER THAT IS NOT AUTHORIZED BY THIS AGREEMENT. THE REMEDY OF CONSEQUENTIAL DAMAGES SHALL NOT BE AVAILABLE EVEN IN THE EVENT THE SOLE AND EXCLUSIVE REMEDY OF REPLACEMENT FAILS OF ITS ESSENTIAL PURPOSE.

9.      Independent Contractors.   The relationship between Customer and Company is that of independent contractors.  Neither Party shall be deemed to be the agent, fiduciary or legal representative of the other. Customer and Customer Coordinator shall have no authority to make any representations, or to take any action, which shall be binding upon Company except as is provided for herein or as is otherwise authorized in writing by Company.
 
10.         Miscellaneous.   The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right.  Neither party may assign or delegate any of its rights or obligations under this Agreement without the prior written consent of the other; provided, however, the sale of Company or the sale, assignment or other transfer of Company’s business and/or assets will not be deemed an assignment or delegation.  Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

11.             Company Contact.   For any questions regarding the Vytex NRL sample or Vystar, please contact the following:  Sandra Parker, 3235 Satellite Blvd, Bldg 400, Suite 290, Duluth, GA 30096, USA, P:  001-770-965-0383, F: 001-770-965-0162, E-mail:  sparker@vytex.com.

 
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Attachment 1
Trademarks & Labeling

Customer shall place the following trademark label on all packaging and/or bills of lading shipping the Vytex™ NRL. The size of this label shall be appropriate for the size of the packaging.  For example, for sample-sized shipments, the label shall be no smaller than 4 inches by 6 inches.  For 55 gallon drum-sized shipments, the Vytex label shall be no smaller than 8 inches by 12 inches.  Vystar shall provide Customer with the graphics for such labeling.

If the Vytex order is in a larger sized vessel than a 55-gallon drum, the Vytex label shall be placed on the bill of lading accompanying that shipment.  The Vytex trademark label on the bills of lading shall be no smaller than 2 inches by 3 inches.

Customer shall also comply with the following additional usage requirements:
 
1.
The Vytex logo must be present on all Vytex NRL products and samples.
 
2.
Distributor must not obstruct the Vytex logo by placing any other elements either on or too close to the logo.
 
3.
The Vytex oval shape must not be used as a decorative element.
 
4.
Customer must not add any trademark symbol to any of the Vytex or other Vystar products or in conjunction with the Vytex or Vystar logos that do not already appear there from Vystar.
 
5.
Customer may only use the Vystar and Vytex logo or oval symbol in connection with the packing and shipping of Vytex consistent with the terms in this Manufacturing Agreement.

Customer may use the Vystar and Vytex trademarks only as provided for herein unless expressly approved in writing by Vystar.

The following is the Vytex logo.

Vytex™ and related marks are trademarks of Vystar Corporation, Duluth, Ga

 

 

The following is the Vytex logo as it should be used on product labeling.


 

 

Attachment 2
Shipping, Storage & Handling Requirements
 
1. Vytex NRL has colloidal behavior similar to normal NR centrifuged latex concentrates.  It can be adversely affected if the Vytex NRL is exposed to extreme temperatures, excessive shear and chemical contamination.  Vytex NRL should be stored under a covered roof and away from exposure to direct sunlight.
 
2. Temperature Vytex NRL is to be stored at a storage temperature between 10 to 30 ° C.  Excess heat increases the Brownian motion and could result in microcoagulum and coagulum due to particle agglomeration.  Additionally, heat evaporates water and the ammonia in Vytex NRL which would result in a drop in pH that could potentially lead to Vytex NRL destabilization.
 
3. Mechanical Shear Vytex NRL is a colloidally stable compound largely due to the removal of species vulnerable to free radical breakdown.  The stability of Vytex NRL can be overcome if product is subjected to excessive mechanical shear.  When handling Vytex NRL, gravity feed should be used.  When gravity feed is not applicable, single or double diaphragm pumps which produce the lowest level of shear are to be used. Rotor/stator shear or piston pumps must be avoided. Where pump facilities are not available, the practice of using compressed air applied to the barrel is sometimes resorted to. This is a potential safety hazard as the plastic barrels or totes used to supply the latex can on occasion rupture.
 
4. Chemical Destabilization of Vytex NRL would result when the latex is exposed to calcium and magnesium ions commonly found in hard water.  Deionised (DI) ammoniated water should be used when diluting Vytex NRL. DI ammoniated water is to be used when compounding Vytex NRL.
 
5.  Shelf Life Vytex NRL has a shelf life of 6 months when kept away from extreme temperatures.  As previously recorded, the optimum storage temperature is 10 to 30 ° C. Excessive loss of ammonia can occur during storage and possibly lead to destabilization of Vytex NRL.  The pH should be monitored and if the pH drops below 10.0, it should be adjusted to 10.5 with an approved ammonia hydroxide solution.
 
6.  Drum Storage Vytex NRL should be stored and transported in 200Kg/205 litre metal (Bitumen or Epoxy coated) or plastic barrels which are with a mouth for filling and removal of contents.  Drums should be agitated by rolling or with a collapsible stirrer before drawing samples or before use.  For drums being rolled, 20 minutes every 3 to 4 days is optimum.
 
7.  Storage Tanks Vytex NRL should be stored in tanks made from mild steel (MS), stainless steel (SS) or glass fiber reinforced plastics (FRP).  Vytex NRL stored in mild steel tanks, the MS tanks must be given a protective coating to prevent corrosion and contamination of Vytex NRL.  Paraffin wax and epoxy resin based coating materials could both be used.  Prior to coating, the tank surface must be cleaned (if possible sand blasted), dry and free of scale to prevent the lining from lifting.
 
8.  Storage Tank Cleaning Vytex storage tanks must be cleaned regularly and disinfected.  Disinfection is done on the storage tanks twice a year. 30% Formaldehyde solution is used as a disinfectant. If its use is not permitted, sodium hypochlorite can be used or any other permitted bactericide. The solution is left for 12-16 hours, removed and the tank must be cleaned with ammoniated DI water to remove all traces of the disinfectant.

 

 

SCHEDULE E - Sampling Agreement

Vystar Corporation
VYTEX™ NRL
SAMPLING USER LICENSE AGREEMENT

As a condition precedent to receiving the enclosed sample of Vytex natural rubber latex (“NRL”), the Evaluator ( hereinafter referred to as “Evaluator” “You” or “Your”) expressly and implicitly agrees to the following terms and conditions for receipt and use of the enclosed Vytex NRL™ sample (“Agreement”).  This Agreement shall constitute a binding contract between you and Vystar Corporation, a Georgia corporation with its principal place of business at 3235 Satellite Blvd., Bldg 400, Suite 290, Duluth, GA 30096 (“Vystar” “Company” or “Our”).   The parties hereto may be referred to individually as “Party” or collectively as “Parties.”  In consideration of the mutual benefits described in this Agreement, Vystar is pleased to allow Evaluator to use and evaluate Company’s proprietary, low-protein, natural rubber latex, Vytex  NRL, solely under circumstances described herein.

1.            Scope and Purpose.     The exclusive purpose of this evaluation is for further processing or manufacturing the Vytex NRL to create end product(s) for the sole and exclusive purpose of evaluating the Vytex NRL in terms  its (i) reliability and ease of use; (ii) low protein result after processing and/or manufacturing with Vytex NRL; (iii) clarity, composition and other physical properties of end product(s) made with Vytex NRL; and (iv) general quality of end product(s) made with Vytex NRL (“Assessment Metrics”).
2.             Limited License.   Subject to the terms of this Agreement, Company grants to Evaluator, and Evaluator accepts a non-transferable, non-exclusive, terminable license (i) to use the Vytex NRL only for performance, and (ii) to use any Documentation that may be provided by Company in connection with Evaluator’s use of the Vytex NRL in accordance with this Agreement.  Evaluator shall not cause, suffer or permit the modification, alteration, disassembly, reverse engineering or decompilation of or creation of derivative works using the Vytex NRL in any way or on any portion thereof beyond your standard compounding, processing and/or manufacturing processes in the ordinary course of your business.  Any derivative works, or other changes to the Vytex NRL whether authorized or unauthorized shall be the sole and exclusive property of Company.
3.             Future Releases.   Evaluator acknowledges that: (a) the Vytex NRL may not be in the form of subsequent releases and may contain different levels of proteins or have different characteristics within batches; and (b) Company reserves the right, in its sole and absolute discretion, to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Vytex NRL.
4.             Evaluation.   Evaluator shall undertake the testing and evaluation of Vytex NRL as described above.  Evaluator shall test, gather and record all data required for the Assessment Metrics.  Evaluator shall submit to Company or the Company-authorized distributor from whom Evaluator received the Vytex NRL sample,  a brief final report including the Assessment Metrics data, study results, test data, supporting data, etc., but only those which represent the physical attributes of the end products, and which are not proprietary or confidential to Evaluator (“Evaluation Records”).
5.           Ownership and Prohibition on Releasing or Distributing.
(a)           Evaluator agrees that, except for the license rights granted in this Agreement, nothing in this Agreement gives Evaluator any right, title or interest in, to or under any Vytex NRL or Documentation or any intellectual property rights therein, and further agrees that the foregoing are the sole and exclusive property of Company.
(b)           Evaluator shall not, and shall not permit its employees, representatives or agents to (i) move, sell, assign, lease, sublet, sublicense, transfer, pledge, transmit, display or disclose or make available to any third party the Vytex NRL sample or any product made with the Vytex NRL sample, or allow any third party to use any of the Vytex NRL or the Documentation, except as specifically permitted pursuant to this Agreement, or, (ii) copy or otherwise reproduce the Documentation (or any portion thereof) except as necessary for Evaluator's use, in accordance with the terms and conditions of this Agreement.  Each such copy, whether complete or partial, shall bear the same copyright notices and restrictive legends, if any, as are included in the material delivered to Evaluator.  All copies shall be the sole and exclusive property of Company and shall be subject to the terms and conditions of this Agreement.
(c)           In the event that Evaluator desires to sell, market or distribute any Vytex NRL or any product made with Vytex NRL, Evaluator shall enter into a separate agreement with either Company or a Company-authorized distributor describing the terms for such (“Definitive Agreement”).
6.             Publication.   Evaluator shall not issue any press release or otherwise make any public announcement or disclosure regarding this Agreement, Vystar or Vytex NRL without the express written consent of the Company prior to executing a Definitive Agreement for the sales and/or licensing of Vytex NRL.
7.             Infringement Indemnification.   Company shall defend and indemnify and hold Evaluator harmless against any action brought against Evaluator to the extent that it is based on a claim that Vytex NRL, properly used within the scope of this Agreement, infringes a United States patent or copyright, provided Evaluator notifies Company promptly in writing of the action and gives Company the sole control of the defense, all negotiations and any settlement.  If Vytex NRL becomes, or is likely to become, the subject of an infringement claim, Company may, at its option, secure Evaluator’s right to continue using the Vytex NRL or replace or modify it to make it non-infringing with substantially similar functions and levels of performance.  If neither of these alternatives is reasonable available, Company may terminate this Agreement.  THIS PARAGRAPH STATES THE ENTIRE RESPONSIBILITY OF COMPANY CONCERNING PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHT INFRINGEMENT.
8.             Entire Understanding.   This Agreement and the Confidentiality and/or Non-Disclosure Agreement executed between the Parties (inclusive of any Schedules and Attachments hereto which are all incorporated herein by reference) constitutes the entire agreement and sets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements, covenants, arrangements, discussions and negotiations with respect thereto.  No modification, waiver or amendment of this Agreement shall be effective unless it is in writing and signed by an authorized signatory of Company and Evaluator.  The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right.

 

 

9.             Governing Law.   This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia without the application of the conflict of laws principles.  Any legal action or proceeding with respect to this Agreement shall be brought and maintained in the state or federal courts located in the city of Atlanta or County of Gwinnett, and, by execution and delivery of this Agreement, each Party hereby accepts for itself and in respect of its property, generally and unconditionally the jurisdiction of the aforesaid courts.  Each Party further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding.
10.             Disclaimer Of Any And All Warranties. THE VYTEX NRL IS PROVIDED “AS IS” AND “WHERE IS,” WITH ANY FAULTS AND WITHOUT WARRANTY OF ANY KIND.  COMPANY MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE VYTEX NRL FOR EVALUATOR’S INTENDED REQUIREMENTS OR PURPOSES. COMPANY DOES NOT WARRANT THAT THE VYTEX NRL WILL PERFORM AS DESIRED OR WITH THE DESIRED RESULTS OR IS ERROR-FREE. COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
11.             Limitation of Liability.   IN NO EVENT WILL COMPANY BE LIABLE TO EVALUATOR OR ANY THIRD PARTY ARISING OUT OF THE USE OF VYTEX NRL, OR ANY END PRODUCT MADE WITH VYTEX NRL, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF EVALUATOR OR ANY OTHER PERSON HAS ADVISED COMPANY OR ANY OF ITS LICENSORS OF THE POSSIBILITY OF SUCH DAMAGES.  COMPANY SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO EVALUATOR OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOST PRODUCT OR LOST USE, FAILURE OR MALFUNCTION OR OTHER LOSS.
12.             Regulatory Filings.   The Parties recognize that the information produced hereunder may be used by Company for filings made with regulatory agencies. Evaluator agrees to assist Company as reasonably necessary for any such regulatory filings.
13.           Independent Contractors.   The relationship between Evaluator and Company is that of independent contractors.  Neither Party shall be deemed to be the agent, fiduciary or legal representative of the other. Evaluator and Evaluator Coordinator shall have no authority to make any representations, or to take any action, which shall be binding upon Company except as is provided for herein or as is otherwise authorized in writing by Company.
14.             Company Contact.   For any questions regarding the Vytex NRL sample or Vystar, please contact the following:  Sandra Parker, 3235 Satellite Blvd, Bldg 400, Suite 290, Duluth, GA 30096, P:  770-965-0383, F:  770-965-0162, E-mail:  sparker@vytex.com.

 

 
 
EXECUTIVE EMPLOYMENT AGREEMENT


THIS EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) made and entered into on this 11 th day of November, 2008 (the "Effective Date"), by and between Vystar Corporation, a Georgia corporation (the "Company"), and William R. Doyle, a resident of the State of Georgia ("Employee").

In consideration of the employment by the Company and of the compensation and other remuneration paid, and to be paid, by the Company and received by Employee for such employment, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by Employee, it is agreed by and between the parties hereto as follows:

1.   Definitions. For purposes of this Agreement, the following terms shall have the meanings specified below:

" Business " - the research, development, manufacturing, marketing, distribution, licensing and offering of products, services and technologies offered by the Company as of the Effective Date and as may be offered by Company during the term of this Agreement, including all renewals. Such products, services and technologies include, but are not limited to, marketing, selling, distributing and developing natural rubber latex (NRL) raw material and related products and services to processors, manufacturers, distributors and other parties who use and/or purchase NRL as a raw material and/or who manufacture products using NRL.
 
“Competitor” - means any Person (as defined herein) offering, selling, distributing, processing, developing, licensing or manufacturing NRL and related products, services and technologies to or for processors, manufacturers, distributors and other parties who use, manufacture, process and/or purchase NRL raw material and/or who manufacture end products using NRL raw materials or a synthetic alternative to NRL in competition with Company or any of its subsidiaries .
 
   
" Confidential Information " - information relating to the operations, customers, or finances of the Company, or the Business, that derives value from not being generally known to other Persons, including, but not limited to, technical or nontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, and lists of or identifying information about actual or potential customers or suppliers, including all customer lists, whether or not reduced to writing, certain patented and unpatented information relating to the research and development, manufacture or serving of the Company's products, information concerning proposed new products, market feasibility studies and proposed or existing marketing techniques or plans, and all information defined as a “Trade Secret” pursuant to the Georgia Trade Secrets Act or otherwise by Georgia law. Confidential Information also includes the same types of information relating to the operations, customers, finances, or Business of any affiliate of the Company, if such information is learned by Employee during the term of this Agreement or in connection with Employee's performance of Services, as defined herein. Con-fidential Information also includes information disclosed to the Company by third parties that the Company is obligated to maintain as confiden-tial. Confidential Information may include information that is not a Trade Secret, but Confiden-tial Information that is not also a Trade Secret shall constitute Confidential Information only for five (5) years after the Termination Date. Confidential Information does not include information generally available to the public through no violation of a confidentiality or non-disclosure obligation owed to Company;
 
1


 
   
" Customer " - any customer of the Company in the Territory that Employee, during the term of this Agreement, (i) provided goods or services to or solicited on behalf of the Company; or (ii) about whom Employee possesses Confidential Information;

   
" Person " - any individual, corporation, partnership, limited liability company, association, municipality, government agency, government, unin-corporated organization or other entity;

   
" Services " - the duties and functions that Employee shall provide in the Territory as an employee of the Company and as further outlined on Exhibit B;

   
" Termination Date " - the last day Employee is employed by the Com-pany, whether the termination is voluntary or involuntary and whether with or without cause;
“Territory” - shall be the geographic region in which Employee initially and/or within the last eighteen (18) months during the term of this Agreement provides the Services. Territory shall be more fully described in Exhibit B along with Employee’s description of Services.

2.   Employment: The Company agrees to employ Employee and Employee agrees that Employee will devote Employee’s full productive time, skill, energy, knowledge and best efforts during the period of Employee’s employment to such duties as the Board of Directors of the Company may reasonably assign to Employee, and Employee will faithfully and diligently endeavor to the best of Employee’s ability to further the best interest of the Company during the period of Employee’s employment. However, Employee is not prohibited from making personal investments in any other businesses, as long as those investments do not require Employee to participate in the operation of the companies in which Employee invests and such other businesses are not in competition with the Company or any of its subsidiaries (“Competitor”). Employee may invest in any publicly traded company registered on a bona fide stock exchange without reservation.

3.   Terms of Employment: Employee's employment pursuant to this Agreement will begin on the 1 st day of November, 2008, and will continue uninterrupted unless terminated by either party pursuant to the Termination Section herein. This Agreement shall supersede all terms of employment previously executed and existing prior to the execution of this Agreement.

4.   Compensation: On the terms and subject to the conditions of this Agreement, (i) the Company will pay Employee a salary and a bonus determined in accordance with Exhibit A, (ii) Employee will be entitled to participate in the Company’s 2004 Long-Term Incentive Compensation Plan (“Stock Option Plan”), or such other employee stock option plan as may be in effect from time to time, and (iii) the Company will provide Employee with employee benefits consistent with those provided by the Company to similarly situated executives. The employee benefits provided by the Company as of the date hereof shall also be distributed to Employee. The Company reserves the sole and unilateral right to modify any and all employee benefits at any time in its sole discretion.

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5.   Title, Duties and Conduct of Employee: The Employee’s initial title shall be President, Chief Executive Officer, and Chairman of the Board, and shall report to the Board of Directors of Company. Employee shall perform such duties and functions for the Company as shall be specified from time to time by the Board of Directors of the Company, including, but not limited to the duties and functions expressly set forth on Schedule B, and which are consistent therewith (“Services”).
a.   Disparagement. Employee shall not at any time make false, misleading or disparaging statements about the Company, including the Business, management, employees and/or Customers.

b.   Prior Agreements. Employee represents and warrants that Employee is not under any obligation, contractual or otherwise, limiting, impairing or affecting Employee's performance of Services. Upon execution of this Agreement, Employee shall give the Company any agreement with a prior employer or other Person purporting to limit or affect, in any way, Employee's ability to work for the Company, to solicit customers or potential customers or employees or to use any type of information.

c.   Confidential Information. Employee shall protect Confidential Information. Except as required in connection with work for the Company, Employee will not use, disclose or give to others, during or after Employee's employment, any Confidential Information.

d.   Compliance with Company Policies and Laws. At all times while performing Services, Employee shall comply with all laws and regulations applicable to Employee and/or Company. Employee shall at all times comply with all Company policies and procedures. Failure to comply with this Section shall be grounds for Termination For Cause, as described in Section 9 Term and Termination.

6.   Illness or Incapacity: Employee is entitled to paid-time off and absence from Employee’s duties during regular work hours for any reason for a total of four (4) weeks each calendar year (“PTO”). If Employee cannot perform his/her duties because of major illness or incapacity for more than a total of ninety (90) days in any year, the Company may terminate this Agreement upon thirty (30) days' written notice to Employee. Employee is not entitled to receive, and the Company shall not be required to pay, Employee's compensation hereunder for absences because of major illness or incapacity other than the total of ninety (90) days in each year granted to Employee under this Section 6.
 
7.   Ownership of Information

a.   Work For Hire Acknowledgment; Assignment. All writings, draw-ings, photographs, tapes, recordings, strategies, formulas, operating procedures, patents, product developments, computer programs and other works in any tangible medium of expression, regardless of the form of medium, which have been or are prepared by Employee, or to which Employee contributes, in connection with Employee's employ-ment by the Company, whether patented, copyrighted, trademarked or otherwise (collectively the "Works") and all copyrights, patents, trademarks and other rights in and to the Works, belong solely, irrevocably and exclusively throughout the world to the Company as works made for hire. However, to the extent any court or agency should conclude that the Works (or any of them) do not constitute or qualify as a "work made for hire," Employee hereby assigns, grants and delivers, solely, irrevocably, exclusively and throughout the world to the Company all ownership and other rights to the Works. Employee also agrees to cooperate with the Company and to execute such other further grants and assignments of all rights as the Company from time to time reasonably may request for the purpose of evidencing, enforcing, filing, registering or defending its ownership of the Works and the copyrights in them, and Employee hereby irrevoca-bly constitutes and appoints the Company as Employee's agent and attorney-in-fact, with full power of substitu-tion, in Employee's name, place and stead, to execute and deliver any and all such assignments or other instruments which Employee shall fail or refuse promptly to execute and deliver, this power and agency being coupled with an interest and being irrevo-cable. Without limiting the preceding provisions of this Paragraph 7(a), Employee agrees that the Company may edit and otherwise modify, and use, publish and otherwise exploit, the Works in all media and in such manner as the Company, in its discretion, may determine.

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b.   Inventions, Ideas and Patents. Employee shall disclose promptly to the Company (which shall receive it in confidence), and only to the Company, any invention or idea of Employee (developed alone or with others) conceived or made during Employee's employment by the Company (or, if related to the Business, during employment or within one year after the Termination Date). Employee assigns to the Company any such invention or idea in any way connected with Employee's employment or related to the Business, research or development of the Company, or demonstrably anticipated research or development of the Company, and will cooperate with the Company and sign all papers deemed necessary by the Company to enable it to obtain, maintain, protect and defend patents covering such inventions and ideas and to confirm the exclusive ownership of the Company of all rights in such inventions, ideas and patents, and irrevoca-bly appoints the Company as its agent to execute and deliver any assignments or documents Employee fails or refuses to execute and deliver promptly, this power and agency being coupled with an interest and being irrevocable. This constitutes written notification to Employee that this assignment does not apply to an invention for which no equipment, supplies, facility or Trade Secret information of the Company or any Customer was used and which was developed entirely on Employee's own time, unless (a) the invention relates (i) directly to the Business or (ii) to the actual or demonstrably anticipated research or develop-ment of the Company, or (b) the invention results from any work performed by Employee for the Company.

8.   Nonsolicitation; Noncompetition .  

a.  
Non-Solicitation of Customers. During the term of this Agreement, and for one (1) year after the Termination Date, Employee will not solicit Customers within the Territory for the purpose of providing products or services comparable to those provided by the Business, except on behalf of the Company.
 
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b.  
Non-Solicitation of Company Employees. During the term of this Agreement and for one (1) year after the Termination Date, Employee will not solicit for employment with another Person anyone who is an employee of the Company.

 
c.
Non-Compete. During the term of this Agreement and for one (1) year after the Termination Date, Employee will not provide services substantially similar to Services within the Territory to any Competitor. Employee shall be prohibited from providing in the Territory in competition with the Company in accordance with the terms of this Agreement, including the Services expressly set forth on Schedule B attached hereto. Employee acknowledges that Employee has been informed of and discussed with the Company the specific activities that Employee will perform as Services and that Employee understands the scope of the activities that constitute Services and the Territory under this Agreement. In exchange for entering into this noncompete during the one-year period after Termination of this Agreement, Employee shall be compensated as described in Effect of Termination, Section 9.c.

 
d.
Future Employment Opportunities. Prior to and for one (1) year after the Termination Date, Employee shall (a) provide any employer with a copy of this Agreement, and (b) upon accepting any position, provide the Company with the employer's name and a description of the services, if any, Employee will provide for such employer.
 
9.   Termination . At all times, Employee’s employment shall be subject to “employment at will”. This Agreement and the employment of Employee may be terminated as follows:

a.   Without Cause . Either party may terminate this Agreement upon thirty (30) days notice to the other party.

b.   For Cause.
(1)   By the Company (i) pursuant to Paragraph 6 , (ii) upon conviction of the Employee of any felony or material misdemeanor under federal, state or local laws or ordinances, except traffic violations (iii) upon the failure of Employee to reasonably, diligently or competently discharge the duties assigned to him pursuant to this Agreement; (iv) if Employee engages in any act of dishonesty or bad faith with respect to the Company; (v) if Employee uses alcohol, drugs or other similar substances in a manner that adversely affects Employee’s work performance; (vi) Employee otherwise commits any act or crime reflecting unfavorably upon the Company or

(2)   (i) By Employee upon thirty (30) days' written notice to the Company for any breach of this Agreement by Company and failure to cure within that thirty (30) day notice period; or

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(3)   By the Company upon any breach by Employee of any of the terms and conditions of this Agreement or the breach by Employee of any representation or warranty made to the Company herein or in any other agreement, document or instrument executed by Employee and delivered to the Company, or should any representation or warranty made by Employee hereunder or thereunder prove to have been false or misleading in any material respect when made or furnished; or

(4)   Immediately by the Company upon the death or incapacitation of more than ninety (90) days of Employee.

c.   Effect of Termination.

(1)   In the event Employee is terminated by the Company without cause, the Company shall (i) pay Employee his then current salary and provide Employee with Group Health Insurance, but no other compensation or benefits, for six (6) months beginning with the date of termination (“Severance Payment”), and (ii) subject to the Employee's strict adherence to and performance of the covenants set forth in Paragraph 8, Company shall pay to Employee, an amount equal to seventy-five percent (75%) of Employee’s monthly salary amount for the one (1)-year period Employee remains obligated to the Non-Compete and Non-Solicitation covenants described in paragraph 8. If Employee is terminated for cause or Employee terminates this Agreement without cause, Employee shall be entitled only to compensation accrued through the date of Termination and all benefits accrued as of such date, and shall not be entitled to any Severance Payment described herein, but shall remain obligated to the Non-Compete and Non-Solicitation obligations.

(2)   Return of Materials. On the Termination Date or for any reason or at any time at the Company's request, Employee will deliver promptly to the Company all materials, documents, plans, records, notes, manuals, subcontracts, procedures, customer lists, and any other papers and any copies thereof in Em-ployee's possession, custody or control relating to the Company or the Business, whether defined as Confidential Information, Trade Secret or otherwise, all of which at all times shall be the property of the Company.

10.   Miscellaneous .  

a.   Assignability.  

(1) This Agreement may be assigned by the Company to any successor in interest to its business, which successor in interest shall be bound herein to the same extent as the Company. Employee agrees to perform his duties for such successor in interest to the same extent as for the Company.

(2) This is a personal agreement on the part of Employee and may not be sold, assigned, transferred or conveyed by Employee.

 
b.   No Waiver . The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by the other party.
 
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c. Governing Law and Jurisdiction . This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. Any cause of action shall be filed in and the parties agree to subject themselves to the jurisdiction of any State or Federal court of competent jurisdiction located in Atlanta, Georgia.

 
d. Entire Agreement . This Agreement states the entire agreement and understanding between the parties and supersedes all prior understandings and agreements.

e. No Modification . No change or modification to this Agreement shall be valid unless in writing and signed by both parties hereto.

f.   Independence of Covenants . The covenants contained herein shall be construed as agreements independent of each other and of any other provision of this or any other contract between the parties hereto, and the existence of any claim or cause of action by Employee against the Company, whether predicated upon this or any other contract, shall not constitute a defense to the enforcement by the Company of said covenants.

g . Right to Injunctive Relief . Employee recognizes and agrees that the injury the Company will suffer in the event of the Employee's breach of any covenant or agreement contained herein cannot be compensated by monetary damages alone, and Employee therefore agrees that the Company, in addition and without limiting any other remedies or rights that it may have, either under his Agreement or otherwise, shall have the right to obtain an injunction against Employee from any court of competent jurisdiction enjoining any such breach without having to show or prove damages or injury.

h. Jury Trial Waiver . Both parties hereby waive their right to a trial by jury in the event of any dispute or cause of action regarding this Agreement.
 



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IN WITNESS WHEREOF , the undersigned have executed this Agreement as of the day and year first above written.
 
 
  VYSTAR CORPORATION
     
  By:   
    (Signature)
     
  Name: Joseph Allegra
     
  Title: Director, Chair Compensation
     
  Date:  
     
  EMPLOYEE:
      
    (Signature)
     
  Name: William R. Doyle
     
 
Date:
 
 
 
 
     

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Schedule A - Salary and Bonus

 
Annual Salary. $185,000 , which may be amended from time to time by the Board.   The Salary shall be payable bi-weekly according to the Company’s established payroll periods. The Board and Employee shall review the Annual Salary amount annually upon Employee’s Annual performance review that determines Employee’s Annual Bonus discussed below.  

Bonus.  

Annual Bonus. Employee shall be eligible each year of the term of this Agreement for a cash bonus equal to a maximum of 125% of Employee’s Annual Salary amount based on the success of the Company in meeting its objectives, as set out for Employee; provided that no cash bonus shall be payable to Employee on any date unless Employee is employed by the Company on that date. The amount of the Annual Bonus shall be determined by the Board based on the percentage of achievement of the stated Company objectives. Notwithstanding, if Company does not meet at least 90% of its stated objectives, the Board may choose not to award Employee any portion of his Annual Bonus. The effective date of Annual Bonus calculation shall be the Company Fiscal Year-End, and shall be payable in one or more installments as determined by the Board beginning in the first quarter of the following Fiscal Year.

 

 
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Schedule B - Duties and Functions (“Services”)


Services: Oversee and promote all aspects of the Company business. This shall include, but not be limited to: (i) having all operations, marketing, finance, sales, distribution and research and development functions report to Employee; (ii) mentoring and guiding all employees in the management and furtherance of the Company objectives.




Territory: Worldwide









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MANAGEMENT AGREEMENT
 
THIS MANAGEMENT AGREEMENT (“Agreement”) is dated January 31, 2008 (“Effective Date”) by and between UNIVERSAL CAPITAL MANAGEMENT, INC. , a Delaware corporation (“ Manager ”), and VYSTAR CORPORATION, a Georgia corporation ( “VYSTAR” or “Company” ) .
 
BACKGROUND
 
VYSTAR desires to obtain from the Manager, and the Manager is willing and able to provide to VYSTAR, management services and other assistance in accordance with and subject to the terms and conditions set forth in this Agreement.
 
For and in consideration of the mutual benefits and covenants set forth below, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
 
1.   Appointment as Manager .
 
(a)   VYSTAR hereby engages Manager to provide management services and other assistance in accordance with the terms of this Agreement. The Manager shall and hereby agrees to devote such time as is reasonably necessary to provide such services and assistance.
 
2.   Scope of Services .
 
(a)   Manager hereby agrees to provide to VYSTAR the following services (as amended from time to time, collectively, the “Services” ):
 
(i)   Strategic Planning. Manager shall assist VYSTAR management in the strategic planning process to include but not be limited to analysis of potential markets, competition, product marketing approaches, pricing and future product utility.
 
(ii)   Investment Banking Consultation and Investor Introduction Services . Manager is not registered at this time as a securities broker or dealer, and represents and warrants that such registration is not required. Manager further represents that it does not have an affiliation with any securities brokerage firm. As a result, the Company understands that, while the Manager will introduce the Company to qualified persons and/or institutions who indicate a serious interest in pursuing a possible financing transaction for the Company within the parameters established by the Company, the Manager will not be involved in conducting negotiations for the Company with any such persons, handling any funds or securities, or performing services that would constitute a business of effecting transactions in securities under applicable federal or state law. Manager further represents and warrants that it has not acted as a broker or finder in any other sale of securities and does not intend to participate in any distribution of securities after any transaction under this Agreement.
 
Manager will use its best efforts to assist VYSTAR in seeking and raising funding and in preparation for entering the public market, pursuant to the Manager letter attached hereto as Exhibit A. Manager will provide VYSTAR with various options and methods for attaining its investment banking and public market goals.
 
 
 

 
 
(iii)   Investor Relations Services. Manager will introduce VYSTAR to qualified Investor Relations Manager(s) suitable for providing marketing and public relations services in the investor community on behalf of VYSTAR. At VYSTAR’S request, the Manager will co-ordinate investor relations and public relations services between VYSTAR the provider of such services.
 
3.   Term and Termination .
 
(a)   This Agreement shall be effective as of the Effective Date and, subject to the provisions of section (b) of this Section 3, shall terminate after three (3) months (the “ Term ”).
 
(b)   Notwithstanding the provisions of subsection (a) of this Section 3, (i) Manager can terminate this Agreement at any time upon thirty (30) days’ notice to VYSTAR upon VYSTAR’s failure to pay the amounts required hereunder, and (ii) VYSTAR can terminate this Agreement after thirty (30) days’ notice to Manager of Manager’s material failure to fulfill its obligations hereunder and Manager’s failure to correct such failure during such time period.
 
4.   Compensation .
 
Within thirty (30) days of the signing of this agreement VYSTAR shall pay Manager for the Services by delivering to Manager a Warrant attached hereto as Exhibit A, pursuant to a Warrant Purchase Agreement attached hereto as Exhibit B, to purchase up to One Million (1,000,000) Shares of the common stock of the Company at an exercise price of $0.01. The Warrant will be exercisable in whole or in part at or before 5:00 p.m. E.S.T. on January 31, 2013.
 
In addition, VYSTAR shall reimburse Manager for third party and out-of-pocket expenses actually and reasonably incurred by Manager as an adjunct to and as a supplement to Manager’s responsibility for performing the Services for which Manager is being paid compensation described herein, and which are approved in advance by VYSTAR; provided that expenses of Affiliates of Manager shall not be deemed third party expenses for purposes of this Section 4.
 
5.   Non-Exclusive Contract . The Manager acts as adviser to other clients and may give advice, and take action, with respect to any such client which may differ from the advice given, or the timing or nature of action taken, with respect to VYSTAR.
 
6.   Delegation and Assignment . With VYSTAR’s prior written consent, which consent shall not be unreasonably withheld or delayed, Manager may delegate all or part of its duties to perform Services hereunder; provided, that Manager’ costs associated with any duties so delegated shall not be deemed out-of-pocket expenses added to the price of Services pursuant to Section 4. Notwithstanding the foregoing, Manager shall be entitled to delegate all or any part of its duties to one or more of its Affiliates upon notice to VYSTAR; provided, however, that Manager and its designee Affiliate(s) shall be jointly and severally liable for performance of Manager’s obligations under this Agreement. VYSTAR shall not assign or subcontract its rights, duties, or obligations under this Agreement.
 
 
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7.   Confidential Information; Ownership .
 
(a)   Each party shall treat as confidential all Confidential Information of the other party that comes to its knowledge through this Agreement. Each party shall take such steps to prevent disclosure of such Confidential Information to any third person as it would take in protecting its own proprietary or confidential information and shall not use any portion of such Confidential Information for any purpose not authorized herein. All Confidential Information of each party and any information containing a party’s Confidential Information shall at all times remain the exclusive property of that party.
 
(b)   No party shall be under any obligations with respect to any Confidential Information:
 
(i)   which is, at the time of disclosure, available to the general public;
 
(ii)   which becomes at a later date available to the general public through no fault on the part of such party and then only after such later date;
 
(iii)   which such party can demonstrate was in its possession before receipt from the other party; or
 
(iv)   which is disclosed to such party without restriction on disclosure by a third party who has the lawful right to disclose such information.
 
(c)   The confidentiality obligations of this Section 7 shall survive the termination of this Agreement.
 
8.   Independent Contractor . Manager is and shall remain at all times an independent contractor of VYSTAR in the performance of all Services hereunder, and all persons employed by Manager to perform such Services shall be and remain employees solely of Manager and subject only to the supervision of Manager’s supervisory personnel. With respect to Manager’s employees providing services under this Agreement, Manager shall be responsible for the payment of all salaries and benefits and all income taxes, social security taxes, employment compensation taxes and other employment taxes and withholdings with respect to such employees and all fringe benefits program expenses, such as insurance costs, pension or retirement plans, vacation, sick leave and similar matters, with respect to such employees. Manager shall be entitled to determine which of its employees shall provide the Services.
 
9.   Force Majeure .
 
(a)   Neither party shall be liable for any loss or damage for delay or non-performance under this Agreement resulting from the operation of any applicable law, rule, ordinance or regulation of any governmental entity or regulatory agency, or from any requirement or intervention of civil, naval or military authorities or other agencies of the government, or by reason of any other causes whatsoever not reasonably within the control of such party, including, but not limited to, acts of God, war, riot, insurrection, civil violence or disobedience, blockages, embargoes, sabotage, epidemics, fire, strikes, lock-outs or other industrial or labor disturbances, lightning, hurricanes, cyclonic storms, explosions and delay of carriers; provided, that the affected party notifies the other party promptly of the occurrence of the cause and thereafter exerts reasonable commercial efforts to overcome the cause of prevention and hindrance and to resume performance; and provided, further, that the settlement of strikes, lock-outs and other industrial or labor disturbances shall be entirely within the discretion of the affected party, and the affected party shall not be required to make settlement of strikes, lock-outs and other industrial or labor disturbances by acceding to the demands of any opposing third party or parties when such course is unfavorable in the affected party’s judgment.
 
 
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(b)   If Manager’s performance under this Agreement is suspended or rendered impractical by reason of any cause covered by subsection (a) of this Section 9 (“ Force Majeure ”) for a period in excess of twenty (20) days, VYSTAR  shall have either the right to terminate this Agreement with respect to the disrupted Services immediately upon written notice to Manager or require that the Agreement continue in force for that period of time beyond the Term that such Force Majeure condition existed during the Term without incurring any obligation by VYSTAR for additional payment for Services by Manager. An event of Force Majeure shall not otherwise limit amounts payable for Services rendered on or prior to the actual date of the event of Force Majeure.
 
10.   Limitation of Liability . Notwithstanding any other provision of this Agreement to the contrary, Manager shall not be liable to VYSTAR by reason of any error of omission or commission, performance or failure to perform or delay in performing any Services under this Agreement, for special, incidental or consequential damages, suffered by VYSTAR beyond a refund to VYSTAR of all charges paid and/or shares issued by VYSTAR to Manager for the Services that caused such damages, unless Manager shall have committed gross negligence or willful misconduct. The provisions of this Section 10 shall survive termination of this Agreement.
 
11.   Manager’s Investment Representations . Manager hereby represents and warrants to and with VYSTAR that:
 
(a)   Manager will be acquiring the Shares for its own account as principal and not with a view to, or for sale in connection with, any distribution of all or any of such Shares. Manager hereby agrees that it will not, directly or indirectly, assign, transfer, offer, sell, pledge, hypothecate or otherwise dispose of all or any of such Shares (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of any of such Shares) except in accordance with the registration provisions of the Securities Act of 1933 (the “Securities Act”) or an exemption from such registration provisions or any applicable securities laws.
 
(b)   Manager (i) is knowledgeable and experienced with respect to the financial, tax and business aspects of the ownership of investments such as the Shares and of the business contemplated by VYSTAR and is capable of evaluating the risks and merits of acquiring the Shares and in making a decision to proceed with this investment, has not relied on any representations, warranties or agreements of VYSTAR or others, and (ii) can bear the economic risk of an investment in Shares for an indefinite period of time and can afford to suffer the complete loss thereof.
 
(c)   Manager has evaluated the risks involved in investing in the Shares and has determined that the Shares are a suitable investment for Manager. Specifically, the aggregate amount of the investments the Manager has in, and Manager’s commitments to, all similar investments that are illiquid is reasonable in relation to Manager’s net worth, both before and after the acquisition of the Shares pursuant to this Agreement.
 
 
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(d)   Manager understands and acknowledges that the Shares have not been registered under the Securities Act or any state securities laws and are being offered and sold in reliance on exemptions provided in the Securities Act and state securities laws for transactions not involving any public offering and, therefore, cannot be resold or transferred unless they are subsequently registered under the Securities Act and such applicable state securities laws or unless an exemption from such registration is available. Manager also understands that VYSTAR does not have any obligation or intention to register the Shares for sale under the Securities Act or any state securities laws or of supplying the information which may be necessary to enable the Manager to sell Shares and that Manager has no right to require the registration of the Shares under the Securities Act, any state securities laws or other applicable securities regulations.

(e)   Manager has no contract, understanding, agreement or arrangement with any person to sell, transfer or pledge to such person or anyone else any of the Shares which the Manager will acquire pursuant to this Agreement and that Manager has no present plans to enter into any such contract, undertaking, agreement or arrangement.
 
12.   Definitions .
 
(a)   “Affiliate” means, with respect to a Person, another Person who controls, is controlled by or is under common control with the first such Person.
 
(b)   “Confidential Information” means any and all information of either party that might reasonably be considered confidential, secret, sensitive, proprietary or private. To the extent practical, Confidential Information shall be marked “proprietary” or “confidential.” Confidential Information shall include the following:
 
(i)   data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, lists, financial information, studies, findings, inventions and ideas, computer programs and software, or proprietary information relating to either party or the methods or techniques used by either party;
 
(ii)   data, documents or proprietary information employed in connection with the marketing and implementation of each party’s products, including cost information, business policies and procedures, revenues and markets, distributor and customer lists, and similar items of information; and
 
(iii)   any other data or information obtained by either party during the term of this Agreement which is not generally known to and not readily ascertainable by proper means by third persons who could obtain economic value from its use or disclosure.
 
(c)   “Control” means the ability, through stock ownership, contract, or otherwise, to control the business or officers of a Person.
 
 
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(d)   “Damages and Expenses” means costs, liabilities, and expenses incurred in investigating, defending, and paying settlements or judgments with respect to claims (including reasonable attorneys’ fees).
 
(e)   “Holiday” means for purposes of this Agreement, a day, other than a Saturday or Sunday, on which national banks with branches in the Commonwealth of Pennsylvania are or may elect to be closed.
 
(f)   “Person” means an individual or entity.
 
(g)   “Shares” means shares of common stock of VYSTAR, par value $.0001 dollars per share acquired by Manager pursuant to this Agreement.
 
13.   Miscellaneous .
 
(a)   Indulgences, Etc . Neither the failure nor any delay on the part of either party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
 
(b)   Controlling Law . This Agreement and all questions relating to its validity, interpretation, performance and enforcement (including, without limitation, provisions concerning limitations of actions), shall be governed by and construed in accordance with the laws of the State of Delaware, notwithstanding any conflict-of-laws doctrines of any jurisdiction to the contrary, and without the aid of any canon, custom or rule of law requiring construction against the draftsman.
 
(c)   Notices . All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received only when delivered (personally, by courier service such FedEx or by other messenger) against receipt or upon actual receipt of registered or certified mail, postage prepaid, return receipt requested, addressed as set forth below:
 
If to:
Manager
Universal Capital Management, Inc.
2601 Annand Drive, Suite 16
Wilmington, DE 19808
Attention: Michael D. Queen
 
If to:
VYSTAR CORPORATION
3235 Satellite Blvd.
Building 400, Suite 290
Duluth, GA 30096
Attention: William R. Doyle
 
 
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In addition, notice by mail shall be sent by a reputable international courier (such as FedEx) if posted outside of the continental United States. Any party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this subparagraph for the giving of notice.

(d)   Binding Nature of Agreement; No Assignment . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
 
(e)   Provisions Separable . The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
 
(f)   Entire Agreement . This Agreement contains the entire understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, except as herein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing.
 
(g)   Section Headings . The Section and subsection headings in this Agreement have been inserted for convenience of reference only; they form no part of this Agreement and shall not affect its interpretation.
 
(h)   Gender, Etc . Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context indicates is appropriate.
 
(i)   Number of Days . In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays and Holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or Holiday, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or Holiday.
 
 
7

 
 
IN WITNESS WHEREOF , the Parties hereto have executed this Management Agreement
 
 
VYSTAR Corporation
Universal Capital Management, Inc.
 
 
 
 
By: _______________________________  
By: ____________________________
 
Name: William R. Doyle
 
Name: Joseph T. Drennan
 
Title: President and COO
 
Title: Vice President and CFO

 
8

 




VYSTAR CORPORATION

August 15, 2008

Mr. Michael Queen
Universal Capital Management, Inc.
2601 Annand Drive
Wilmington, DE 19808

Re:
Agreement regarding Issuance of 600,000 Shares of Vystar Corporation (“Vystar) Common Stock to Universal Capital Management, Inc. (“UCM”)

Dear Mike:
 
This letter will memorialize the agreement between Vystar and UCM with respect to certain services to be rendered by UCM to Vystar in connection with the proposed registration of the distribution of 600,000 shares of Vystar Common Stock described below to the UCM stockholders. In consideration of the services described below, on or about the effective date of a Vystar registration statement on Form S-1 which is contemplated to be filed later this year, Vystar shall issue to UCM 600,000 shares of its common stock as compensation for such services and, in accordance with the contemplated description in the Registration Statement, UCM shall distribute such shares to its stockholders on a record date to be determined. The services include the following:
 
 
1.
Assistance in preparation of the S-1 Registration Statement and accompanying documents;
 
 
2.
Assistance in locating appropriate market makers with respect to Vystar’s contemplated listing of its shares for sale on the OTC Bulletin Board;
 
 
3.
Assistance with Vystar’s contemplated application with FINRA with respect to such OTC Bulletin Board listing; and
 
 
4.
Assistance with the contemplated arrangements with a stock transfer agent with respect to the Vystar common stock following effectiveness of such registration statement.
 
Notwithstanding the foregoing, these shares will only be issued to UCM in the event that such registration statement is declared effective by the Securities and Exchange Commission.
 
If the foregoing is acceptable, please so indicate in the space provided below.
     
 
Vystar Corporation
 
 
 
 
 
 
Date:  By:   /s/
 
William R. Doyle
   

Agreed to as of this 15 th day of August, 2008:

Universal Capital Management, Inc.
 
By:  /s/
 

Michael Queen
           
ADDENDUM TO MANAGEMENT AGREEMENT

THIS ADDENDUM TO   MANAGEMENT AGREEMENT (“Addendum”) dated February 29, 2008 is by and between UNIVERSAL CAPITAL MANAGEMENT, INC. and VYSTAR CORPORATION This Addendum amends and modifies that certain Management Agreement dated January 31, 2008 between the parties hereto.

1.
Paragraphs 3. and 4. of the Management Agreement entitled “Term and   Termination” and “ Compensation” respectively, are deleted in their entirety and replaced with the following:

3.
Term and Termination

(a)        This Agreement shall be effective as of the Effective Date and, subject to the provisions of section (b) of this Section 3, shall terminate after one (1) year (the “ Term ”). The Term shall be automatically extended from year to year in the absence of ninety (90) days’ notice from one party to the other.
 
(b)        Notwithstanding the provisions of subsection (a) of this Section 3, (i) Manager can terminate this Agreement at any time upon thirty (30) days’ notice to VYSTAR upon VYSTAR’s failure to pay the amounts required hereunder, and (ii) VYSTAR can terminate this Agreement after thirty (30) days’ notice to Manager of Manager’s material failure to fulfill its obligations hereunder and Manager’s failure to correct such failure during such time period.
 
(c)        Not withstanding any other provision of subsections (a) or (b) of this Section 3, Manager will earn Sixty-Five percent (65%) of the Compensation, Section 4, for the Agreement as of January 31, 2008.
 
4.
Compensation

(c)        Within thirty (30) days of the signing of this agreement Vystar shall pay Manager for the Services by delivering to Manager a Warrant, pursuant to a Warrant agreement attached hereto as Exhibit C, to purchase up to One Million (1,000,000) shares of the common stock of the Company at an exercise price of $0.01. If the Term of this Agreement extends beyond the its Term, VYSTAR shall pay for continuing Services hereunder by delivering five hundred thousand (500,000) additional Warrants to Manager on the anniversary of the Effective Date and each anniversary date thereafter during the term of this Agreement. , and
 
(b)        A Warrant, pursuant to a Warrant agreement attached hereto as Exhibit B, to purchase up to Five Hundred Thousand (500,000) shares of the common stock, par value $.0001 of VYSTAR at an exercise price of $2.00. The Warrant will be exercisable in whole or in part at or before 5:00 p.m. E.S.T. on January 31, 2013.
 
In addition, VYSTAR shall reimburse Manager for third party and out-of-pocket expenses actually and reasonably incurred by Manager as an adjunct to and as a supplement to Manager’s responsibility for performing the Services for which Manager is being paid compensation described herein, and which are approved in advance by Vystar; provided that expenses of Affiliates of Manager shall not be deemed third party expenses for purposes of this Section 4.
 
 
 

 

2.
All other provisions of the Management Agreement remain in full force and effect.

The Parties hereto have executed this Management Agreement as of the date first above written.

Vystar Corporation
 
UNIVERSAL CAPITAL MANAGEMENT, INC.
     
     
BY: __________________________  
 
BY: _______________________
NAME: William R Doyle
 
NAME: Joseph T Drennan
TITLE: President & Chief Operating Officer
 
TITLE: Vice President



WARRANT PURCHASE AGREEMENT


January 31, 2008

Universal Capital Management, Inc.    
2 601 Annand Dr., #16
Wilmington, Delaware 19808

Vystar Corporation , a Georgia corporation (the " Company "), hereby agrees with you as follows:

1.
Concurrently with the execution of this Warrant Purchase Agreement (the “ Agreement ”), the Company is entering into with you a consulting agreement, of even date hereof. Pursuant to the terms of the consulting agreement, the Company will deliver to you a Warrant (the " Warrant ") in the form of Exhibit A hereto, to purchase up to One Million (1,000,000) shares of the Company’s common stock, par value $.0001 per share (the “ Common Stock ”), at a purchase price of ($0.01) per share, exercisable for a period of up to Sixty (60) months commencing on the date hereof. The right to purchase all One Million (1,000,000) shares shall vest immediately.

2.
The Company covenants that all shares that may be issued upon the exercise of the Warrant, upon issuance, will be validly issued, fully paid and non-assessable and free from all taxes, liens and charges with respect to the issuance thereof. The Company further covenants that during the period within which the Warrant may be exercised, the Company will at all times have authorized and reserved a sufficient number of shares of Common Stock to permit the exercise of the Warrant.

3.
This Warrant is not transferable.

If the foregoing correctly sets forth our understanding, please sign below.
 

 
Very truly yours, Accepted as of the
  date written above:
Vystar Corporation
         

 
William R Doyle
Joseph T Drennan, Vice President
President & Chief Operating Officer
Universal Capital Management, Inc.


 
 

 

EXHIBIT A

WARRANT No. ___



NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS WARRANT OR THE SHARES PURCHASABLE HEREUNDER SHALL BE MADE EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED. TRANSFER OF THIS WARRANT IS ALSO RESTRICTED BY A WARRANT PURCHASE AGREEMENT DATED February 28, 2008 A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.

WARRANT TO PURCHASE COMMON STOCK
IN VYSTAR CORPORATION

Exercisable Commencing
January 31, 2008

Void After
January 31, 2013

THIS CERTIFIES that, for value received, Universal Capital Management, Inc. of 2601 Annand Dr., #16, Wilmington, Delaware 19808 , is entitled, subject to the terms and conditions set forth in this Warrant, to purchase from Vystar Corporation (“ Company "), located at 3235 Satellite Blvd., Building 400, Suite 290, Duluth, GA 30096 One Million (1,000,000) shares of the Company’s common stock, par value $.0001 per share (the “ Common Stock ”), at a purchase price of ($.01) per share, exercisable for a period of up to Sixty (60) months commencing on the date hereof, subject to adjustment as provided in Section 5 below. This Warrant is issued pursuant to a Warrant Purchase Agreement between Universal Capital Management, Inc. and the Company, dated January 31, 2008, and is subject to all the terms thereof, including the vesting schedules set forth in Section 1 thereof, and the limitations on transferability set forth in Section 3 thereof.



1.   This Warrant may be exercised by the holder hereof, in whole or in part (but not as to a fractional share), by the presentation and surrender of this Warrant with the form of Election to Purchase duly executed, at the principal office of the Company (or at such other address as the Company may designate by notice in writing to the holder hereof at the address of such holder appearing on the books of the Company), and upon payment to the Company of the purchase price by certified or bank cashier's check. The shares of Common Stock so purchased shall be deemed to be issued to the holder hereof as the record owner of such shares of Common Stock as of the close of business on the date on which this Warrant shall have been surrendered and payment made for such shares. Certificates for the shares of Common Stock so purchased shall be delivered or mailed to the holder promptly after this Warrant has been exercised, and if applicable, a new Warrant identical in form representing the number of shares of Common Stock with respect to which this Warrant shall not then have been exercised shall also be issued to the holder hereof.

 
 

 
2.   Nothing contained herein shall be construed to confer upon the holder of this Warrant, as such, any of the rights of a shareholder of the Company.

3.   The Company shall not issue certificates representing fractions of shares of Common Stock upon the exercise of this Warrant, but shall make a cash payment for any fractional share based on the market price of the Common Stock on the date of exercise, which shall be the closing sale price on the principal exchange on which the Common Stock is traded; or if not traded on any exchange, then the representative closing bid price in the over-the-counter market; or if not traded in the over-the-counter market, the fair market value as determined by the Company’s board of directors. All calculations under this Section 3 and under Section 5 shall be made to the nearest cent or shares, as the case may be.

4.   Subject to the limitations on transfer set forth in Section 3 of the Warrant Purchase Agreement, this Warrant is exchangeable, upon its surrender by the holder at the office of the Company referred to in Section 1 above, for new warrants (containing the same terms as this Warrant) each representing the right to purchase such number of shares of Common Stock as shall be designated by such holder at the time of such surrender (but not exceeding in the aggregate the remaining number of shares of Common Stock which may be purchased hereunder). Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and upon delivery of a bond of indemnity satisfactory to the Company (or, in the case of mutilation, upon surrender of this Warrant), the Company will issue to the holder a replacement warrant (containing the same terms as this Warrant). As used herein, "Warrant" shall include all new warrants issued in exchange for or replacement of this Warrant.

5.   If the Company shall pay a dividend in shares of its Common Shares, subdivide (forward-split) its outstanding shares of Common Stock, combine (reverse-split) its outstanding shares of Common Stock, issue by reclassification of its shares of Common Stock any shares or other securities of the Company, or distribute to holders of its Common Stock any securities of the Company or of another entity, the number of shares of Common Stock or other securities the holder hereof is entitled to purchase pursuant to this Warrant immediately prior thereto shall be adjusted so that the holder shall be entitled to receive upon exercise the number of shares of Common Stock or other securities which he or she would have owned or would have been entitled to receive after the happening of any of the events described above had this Warrant been exercised immediately prior to the happening of such event, and the exercise price per share shall be correspondingly adjusted; provided, however, that no adjustment in the number of shares and/or the exercise price shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in such number and/or price; and provided further, however, that any adjustments which by reason of this Section 5 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. An adjustment made pursuant to this Section 5 shall become effective immediately after the record date in the case of the stock dividend or other distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. The holder of this Warrant shall be entitled to participate in any subscription or other rights offering made to holders of Common Stock had he purchased the full number of shares as to which this Warrant remains unexercised immediately prior to the record date for such rights offering. If the Company is consolidated or merged with or into another corporation or if all or substantially all of its assets are conveyed to another corporation this Warrant shall thereafter be exercisable for the purchase of the kind and number of shares of stock or other securities or property, if any, receivable upon such consolidation, merger or conveyance by a holder of the number of shares of Common Stock of the Company which could have been purchased on the exercise of this Warrant immediately prior to such consolidation, merger or conveyance; and, in any such case, appropriate adjustment (as determined by the Board of Directors) shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the holder of this Warrant to the end that the provisions set forth herein (including provisions with respect to changes in and other adjustments of the number of shares of Common Stock the holder of this Warrant is entitled to purchase) shall thereafter be applicable, as nearly as possible, in relation to any shares of Common Stock or other securities or other property thereafter deliverable upon the exercise of this Warrant. Upon any adjustment of the number of shares of Common Stock or other securities the holder of this Warrant is entitled to purchase, and of any change in exercise price per share, then in each such case the Company shall give written notice thereof to the then registered holder of this Warrant at the address of such holder as shown on the books of the Company, which notice shall state such change and set forth in reasonable detail the method of calculation and the facts upon which such calculation is based.

 
 

 
6.   If at any time:

A.
The Company shall declare a dividend or other distribution on its Common Stock payable otherwise than in cash at the same rate as the immediately preceding regular dividend or in Common Stock;

B.
The Company shall authorize the granting to the holders of its Common Stock of rights to subscribe for or purchase any shares of capital stock of any class or of any other rights;

C.
There shall be any plan or agreement of reorganization, or reclassification of the capital stock of the Company, or consolidation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or

D.
There shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company; then the Company shall give to the registered holder of this Warrant at the address of such holder as shown on the books of the Company, at any time prior to the applicable record date or dates, a written notice summarizing such action or event and stating the record date or dates for any such dividend or rights (or if a record is not to be taken, the date or dates as of which the holders of Common Stock of record to be entitled to such dividend or rights are to be determined), the date on which any such reorganization, reclassification, consolidation, merger, sale of assets, dissolution, liquidation or winding up is expected to become effective, and the date or dates as of which it is expected the holders of Common Stock of record shall be entitled to effect any exchange of their shares of Common Stock for securities of other property deliverable upon any such reorganization, reclassification, consolidation, merger, sale of assets, dissolution, liquidation or winding up.

IN WITNESS WHEREOF , the Company has caused this Warrant to be signed by its duly authorized officers on January 31, 2008.


Attested: VYSTAR CORPORATION
   
   
By:_______________________ By: __________________________
  William R Doyle , President & Chief Operating Officer  
 

MANAGEMENT AGREEMENT
 
THIS MANAGEMENT AGREEMENT (“Agreement”) is dated April 30, 2008 (“Effective Date”) by and between UNIVERSAL CAPITAL MANAGEMENT, INC. , a Delaware corporation (“ Manager ”), and VYSTAR CORPORATION, a Georgia corporation ( “VYSTAR” or “Company” ) .
 
BACKGROUND
 
VYSTAR desires to obtain from the Manager, and the Manager is willing and able to provide to VYSTAR, management services and other assistance in accordance with and subject to the terms and conditions set forth in this Agreement.
 
For and in consideration of the mutual benefits and covenants set forth below, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
 
1.   Appointment as Manager .
 
(a)   VYSTAR hereby engages Manager to provide management services and other assistance in accordance with the terms of this Agreement. The Manager shall and hereby agrees to devote such time as is reasonably necessary to provide such services and assistance.
 
2.   Scope of Services .
 
(a)   Manager hereby agrees to provide to VYSTAR the following services (as amended from time to time, collectively, the “Services” ):
 
 
(i)
Significant Managerial Assistance. Upon VYSTAR’s request, Manager may provide VYSTAR with day to day managerial assistance on issues such as employment, payroll, and benefits; real estate leasing; utility utilization; capital expenditures; personnel; and other related matters.
 
(ii)
Financial Reporting Services. Upon VYSTAR’s request, Manager may assist in providing VYSTAR on a quarter-annual basis a balance sheet, income statement and statement of cash flow for VYSTAR. Such financial reports shall be completed not later than thirty (30) days after the end of the quarter-annual period reported on. Income statements will be based on generally accepted accounting principles as in effect in the United States of America, consistently applied from period to period and in accordance with the terms of contracts and service agreements.
 
(iii)
Tax Reporting Services. Upon VYSTAR’s request, Manager may assist in the preparation of sales and use tax returns for all jurisdictions in which VYSTAR is then subject to reporting as determined by VYSTAR for goods or services sold. If such services are requested, Manager shall provide VYSTAR with the amount of such liability not later than the 10 th business day of each calendar month in which a sales/use tax liability is due to be paid VYSTAR.. Such returns shall be delivered to VYSTAR for execution no later than three (3) days prior to the filing due date for any such return.
 
 
 

 
 
 
(iv)
Accounts Payable Services.
 
(I.)   Upon VYSTAR’s request, Manager may assist VYSTAR in providing for the usual and ordinary business aspects of the accounts payable process for VYSTAR, including but not limited to:
 
A.
Maintaining vendor master
 
B.
Processing vendor invoices
 
C.
Executing vendor payments from VYSTAR’s funds
 
D.
Processing travel expense reports
 
E.
Executing employee payments for travel expense from funds
 
F.
Stop payment administration
 
G.
1099 Misc. reporting
 
H.
Invoice filing
 
I.
Documentation retention
 
(II.)   Upon VYSTAR’s request, Manager may assist VYSTAR with its outstanding accounts payable based upon contracted payment terms and consistent with past business practice.
 

(b)   To the extent that Manager is able in the ordinary course of business, Manager shall provide or cause to be provided, and shall be responsible for said costs associated with, all personnel, facilities, equipment, systems and management necessary or appropriate to provide such Services. In no event will Manager be required to stay in business or take other extraordinary measures solely to provide the Services to VYSTAR; provided, that Manager shall provide Services pursuant to this Agreement in the same order of priority as it provides the same or similar services to its own departments, and provided VYSTAR is notified in advance of any delay and the Services are provided to VYSTAR at the next available opportunity.
 
 
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(c) During the Term of this Agreement, VYSTAR may from time to time request that Manager provide special services or projects in addition to the Services identified in this Section 2, and Manager may in its sole discretion agree to provide such additional services or projects. If Manager agrees to provide such additional services or projects, the Parties shall negotiate in good faith to establish the terms (including, without limitation, price) for providing such additional services or projects, and following agreement on such terms, this Section 2 shall be amended to include such additional services and projects.
 
3.   Term and Termination .
 
(a)   This Agreement shall be effective as of the Effective Date and, subject to the provisions of section (b) of this Section 3, shall terminate after one (1) year (the “ Term ”). The Term shall be automatically extended from year to year in the absence of ninety (90) days’ notice from one party to the other.
 
(b)   Notwithstanding the provisions of subsection (a) of this Section 3, (i) Manager can terminate this Agreement at any time upon thirty (30) days’ notice to VYSTAR upon VYSTAR’s failure to pay the amounts required hereunder, and (ii) VYSTAR can terminate this Agreement after thirty (30) days’ notice to Manager of Manager’s material failure to fulfill its obligations hereunder and Manager’s failure to correct such failure during such time period.
 
4.   Compensation .
 
Within thirty (30) days of the signing of this agreement VYSTAR shall pay Manager for the Services by delivering to Manager a Warrant attached hereto as Exhibit A, pursuant to a Warrant Purchase Agreement attached hereto as Exhibit B, to purchase up to Five Hundred Thousand (500,000) Shares of the common stock of the Company at an exercise price of $2.00. The Warrant will be exercisable in whole or in part at or before 5:00 p.m. E.S.T. on April 30, 2013.
 
If the term of this Agreement extends beyond the Term, VYSTAR shall pay for continuing Services hereunder by delivering to the Manager a Warrant to purchase up to five hundred thousand (500,000) additional shares, at an exercise price of $0.01, on the anniversary of the Effective Date and each anniversary date thereafter during the term of this Agreement.
 
In addition, VYSTAR shall reimburse Manager for third party and out-of-pocket expenses actually and reasonably incurred by Manager as an adjunct to and as a supplement to Manager’s responsibility for performing the Services for which Manager is being paid compensation described herein, and which are approved in advance by VYSTAR; provided that expenses of Affiliates of Manager shall not be deemed third party expenses for purposes of this Section 4.
 
5.   Non-Exclusive Contract . The Manager acts as adviser to other clients and may give advice, and take action, with respect to any such client which may differ from the advice given, or the timing or nature of action taken, with respect to VYSTAR.
 
 
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6.   Delegation and Assignment . With VYSTAR’s prior written consent, which consent shall not be unreasonably withheld or delayed, Manager may delegate all or part of its duties to perform Services hereunder; provided, that Manager’ costs associated with any duties so delegated shall not be deemed out-of-pocket expenses added to the price of Services pursuant to Section 4. Notwithstanding the foregoing, Manager shall be entitled to delegate all or any part of its duties to one or more of its Affiliates upon notice to VYSTAR; provided, however, that Manager and its designee Affiliate(s) shall be jointly and severally liable for performance of Manager’s obligations under this Agreement. VYSTAR shall not assign or subcontract its rights, duties, or obligations under this Agreement.
 
7.   Confidential Information; Ownership .
 
(a)   Each party shall treat as confidential all Confidential Information of the other party that comes to its knowledge through this Agreement. Each party shall take such steps to prevent disclosure of such Confidential Information to any third person as it would take in protecting its own proprietary or confidential information and shall not use any portion of such Confidential Information for any purpose not authorized herein. All Confidential Information of each party and any information containing a party’s Confidential Information shall at all times remain the exclusive property of that party.
 
(b)   No party shall be under any obligations with respect to any Confidential Information:
 
(i)   which is, at the time of disclosure, available to the general public;
 
(ii)   which becomes at a later date available to the general public through no fault on the part of such party and then only after such later date;
 
(iii)   which such party can demonstrate was in its possession before receipt from the other party; or
 
(iv)   which is disclosed to such party without restriction on disclosure by a third party who has the lawful right to disclose such information.
 
(c)   The confidentiality obligations of this Section 7 shall survive the termination of this Agreement.
 
8.   Independent Contractor . Manager is and shall remain at all times an independent contractor of VYSTAR in the performance of all Services hereunder, and all persons employed by Manager to perform such Services shall be and remain employees solely of Manager and subject only to the supervision of Manager’s supervisory personnel. With respect to Manager’s employees providing services under this Agreement, Manager shall be responsible for the payment of all salaries and benefits and all income taxes, social security taxes, employment compensation taxes and other employment taxes and withholdings with respect to such employees and all fringe benefits program expenses, such as insurance costs, pension or retirement plans, vacation, sick leave and similar matters, with respect to such employees. Manager shall be entitled to determine which of its employees shall provide the Services.
 
 
4

 
 
9.   Force Majeure .
 
(a)   Neither party shall be liable for any loss or damage for delay or non-performance under this Agreement resulting from the operation of any applicable law, rule, ordinance or regulation of any governmental entity or regulatory agency, or from any requirement or intervention of civil, naval or military authorities or other agencies of the government, or by reason of any other causes whatsoever not reasonably within the control of such party, including, but not limited to, acts of God, war, riot, insurrection, civil violence or disobedience, blockages, embargoes, sabotage, epidemics, fire, strikes, lock-outs or other industrial or labor disturbances, lightning, hurricanes, cyclonic storms, explosions and delay of carriers; provided, that the affected party notifies the other party promptly of the occurrence of the cause and thereafter exerts reasonable commercial efforts to overcome the cause of prevention and hindrance and to resume performance; and provided, further, that the settlement of strikes, lock-outs and other industrial or labor disturbances shall be entirely within the discretion of the affected party, and the affected party shall not be required to make settlement of strikes, lock-outs and other industrial or labor disturbances by acceding to the demands of any opposing third party or parties when such course is unfavorable in the affected party’s judgment.
 
(b)   If Manager’s performance under this Agreement is suspended or rendered impractical by reason of any cause covered by subsection (a) of this Section 9 (“ Force Majeure ”) for a period in excess of twenty (20) days, VYSTAR  shall have either the right to terminate this Agreement with respect to the disrupted Services immediately upon written notice to Manager or require that the Agreement continue in force for that period of time beyond the Term that such Force Majeure condition existed during the Term without incurring any obligation by VYSTAR for additional payment for Services by Manager. An event of Force Majeure shall not otherwise limit amounts payable for Services rendered on or prior to the actual date of the event of Force Majeure.
 
10.   Limitation of Liability . Notwithstanding any other provision of this Agreement to the contrary, Manager shall not be liable to VYSTAR by reason of any error of omission or commission, performance or failure to perform or delay in performing any Services under this Agreement, for special, incidental or consequential damages, suffered by VYSTAR beyond a refund to VYSTAR of all charges paid and/or shares issued by VYSTAR to Manager for the Services that caused such damages, unless Manager shall have committed gross negligence or willful misconduct. The provisions of this Section 10 shall survive termination of this Agreement.
 
11.   Manager’s Investment Representations . Manager hereby represents and warrants to and with VYSTAR that:
 
(a)   Manager will be acquiring the Shares for its own account as principal and not with a view to, or for sale in connection with, any distribution of all or any of such Shares. Manager hereby agrees that it will not, directly or indirectly, assign, transfer, offer, sell, pledge, hypothecate or otherwise dispose of all or any of such Shares (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of any of such Shares) except in accordance with the registration provisions of the Securities Act of 1933 (the “Securities Act”) or an exemption from such registration provisions or any applicable securities laws.
 
 
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(b)   Manager (i) is knowledgeable and experienced with respect to the financial, tax and business aspects of the ownership of investments such as the Shares and of the business contemplated by VYSTAR and is capable of evaluating the risks and merits of acquiring the Shares and in making a decision to proceed with this investment, has not relied on any representations, warranties or agreements of VYSTAR or others, and (ii) can bear the economic risk of an investment in Shares for an indefinite period of time and can afford to suffer the complete loss thereof.
 
(c)   Manager has evaluated the risks involved in investing in the Shares and has determined that the Shares are a suitable investment for Manager. Specifically, the aggregate amount of the investments the Manager has in, and Manager’s commitments to, all similar investments that are illiquid is reasonable in relation to Manager’s net worth, both before and after the acquisition of the Shares pursuant to this Agreement.
 
(d)   Manager understands and acknowledges that the Shares have not been registered under the Securities Act or any state securities laws and are being offered and sold in reliance on exemptions provided in the Securities Act and state securities laws for transactions not involving any public offering and, therefore, cannot be resold or transferred unless they are subsequently registered under the Securities Act and such applicable state securities laws or unless an exemption from such registration is available. Manager also understands that VYSTAR does not have any obligation or intention to register the Shares for sale under the Securities Act or any state securities laws or of supplying the information which may be necessary to enable the Manager to sell Shares and that Manager has no right to require the registration of the Shares under the Securities Act, any state securities laws or other applicable securities regulations.

(e)   Manager has no contract, understanding, agreement or arrangement with any person to sell, transfer or pledge to such person or anyone else any of the Shares which the Manager will acquire pursuant to this Agreement and that Manager has no present plans to enter into any such contract, undertaking, agreement or arrangement.
 
12.   Definitions .
 
(a)   “Affiliate” means, with respect to a Person, another Person who controls, is controlled by or is under common control with the first such Person.
 
(b)   “Confidential Information” means any and all information of either party that might reasonably be considered confidential, secret, sensitive, proprietary or private. To the extent practical, Confidential Information shall be marked “proprietary” or “confidential.” Confidential Information shall include the following:
 
(i)   data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, lists, financial information, studies, findings, inventions and ideas, computer programs and software, or proprietary information relating to either party or the methods or techniques used by either party;
 
(ii)   data, documents or proprietary information employed in connection with the marketing and implementation of each party’s products, including cost information, business policies and procedures, revenues and markets, distributor and customer lists, and similar items of information; and
 
 
6

 
 
(iii)   any other data or information obtained by either party during the term of this Agreement which is not generally known to and not readily ascertainable by proper means by third persons who could obtain economic value from its use or disclosure.
 
(c)   “Control” means the ability, through stock ownership, contract, or otherwise, to control the business or officers of a Person.
 
(d)   “Damages and Expenses” means costs, liabilities, and expenses incurred in investigating, defending, and paying settlements or judgments with respect to claims (including reasonable attorneys’ fees).
 
(e)   “Holiday” means for purposes of this Agreement, a day, other than a Saturday or Sunday, on which national banks with branches in the Commonwealth of Pennsylvania are or may elect to be closed.
 
(f)   “Person” means an individual or entity.
 
(g)   “Shares” means shares of common stock of VYSTAR, par value $.0001 dollars per share acquired by Manager pursuant to this Agreement.
 
13.   Miscellaneous .
 
(a)   Indulgences, Etc . Neither the failure nor any delay on the part of either party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
 
(b)   Controlling Law . This Agreement and all questions relating to its validity, interpretation, performance and enforcement (including, without limitation, provisions concerning limitations of actions), shall be governed by and construed in accordance with the laws of the State of Delaware, notwithstanding any conflict-of-laws doctrines of any jurisdiction to the contrary, and without the aid of any canon, custom or rule of law requiring construction against the draftsman.
 
 
7

 
 
(c)   Notices . All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received only when delivered (personally, by courier service such FedEx or by other messenger) against receipt or upon actual receipt of registered or certified mail, postage prepaid, return receipt requested, addressed as set forth below:
 
If to:
Manager
Universal Capital Management, Inc.
2601 Annand Drive
Suite 16
Wilmington, DE 19808
Attention: Michael D. Queen
 
If to:
VYSTAR CORPORATION
3235 Satellite Blvd.
Building 400, Suite 290
Duluth, GA 30096
Attention: William R. Doyle

In addition, notice by mail shall be sent by a reputable international courier (such as FedEx) if posted outside of the continental United States. Any party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this subparagraph for the giving of notice.

(d)   Binding Nature of Agreement; No Assignment . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
 
(e)   Provisions Separable . The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
 
(f)   Entire Agreement . This Agreement contains the entire understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, except as herein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing.
 
(g)   Section Headings . The Section and subsection headings in this Agreement have been inserted for convenience of reference only; they form no part of this Agreement and shall not affect its interpretation.
 
(h)   Gender, Etc . Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context indicates is appropriate.
 
(i)   Number of Days . In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays and Holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or Holiday, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or Holiday.
 
 
8

 
 
IN WITNESS WHEREOF , the Parties hereto have executed this Management Agreement
 
 
VYSTAR Corporation
Universal Capital Management, Inc.
   
   
By: _______________________________  
By: ____________________________
   
   
Name: ____________________________
Name: Joseph T. Drennan
   
   
Title: ____________________________
Title: Vice President and CFO
 
 
9

 

 
WARRANT PURCHASE AGREEMENT
 
April 30, 2008

Universal Capital Management, Inc.
2 601 Annand Dr., #16
Wilmington, Delaware 19808

Vystar Corporation , a Georgia corporation (the " Company "), hereby agrees with you as follows:

 
1.
Concurrently with the execution of this Warrant Purchase Agreement (the “ Agreement ”), the Company is entering into with you a consulting agreement, of even date hereof. Pursuant to the terms of the consulting agreement, the Company will deliver to you a Warrant (the " Warrant ") in the form of Exhibit A hereto, to purchase up to Five Hundred Thousand (500,000) shares of the Company’s common stock, par value $.0001 per share (the “ Common Stock ”), at a purchase price of ($2.00) per share, exercisable for a period of up to Sixty (60) months commencing on the date hereof. The right to purchase all Five Hundred Thousand (500,000) shares shall vest immediately.

 
2.
The Company covenants that all shares that may be issued upon the exercise of the Warrant, upon issuance, will be validly issued, fully paid and non-assessable and free from all taxes, liens and charges with respect to the issuance thereof. The Company further covenants that during the period within which the Warrant may be exercised, the Company will at all times have authorized and reserved a sufficient number of shares of Common Stock to permit the exercise of the Warrant.

 
3.
This Warrant is not transferable.

If the foregoing correctly sets forth our understanding, please sign below.

Very truly yours,
 
 
Accepted as of the
Vystar Corporation
date written above:
 


William R Doyle
Joseph T Drennan, Vice President
President & Chief Executive Officer
Universal Capital Management, Inc.
 
 
 

 
 
EXHIBIT A

WARRANT No. ___



NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS WARRANT OR THE SHARES PURCHASABLE HEREUNDER SHALL BE MADE EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED. TRANSFER OF THIS WARRANT IS ALSO RESTRICTED BY A WARRANT PURCHASE AGREEMENT DATED April 30, 2008 A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.

WARRANT TO PURCHASE COMMON STOCK
IN VYSTAR CORPORATION

Exercisable Commencing
April 30, 2008

Void After
April 30, 2013
THIS CERTIFIES that, for value received, Universal Capital Management, Inc. of 2601 Annand Dr., #16, Wilmington, Delaware 19808 , is entitled, subject to the terms and conditions set forth in this Warrant, to purchase from Vystar Corporation (“ Company "), located at 3235 Satellite Blvd., Building 400, Suite 290, Duluth, GA 30096 Five Hundred Thousand (500,000) shares of the Company’s common stock, par value $.0001 per share (the “ Common Stock ”), at a purchase price of ($2.00) per share, exercisable for a period of up to Sixty (60) months commencing on the date hereof, subject to adjustment as provided in Section 5 below. This Warrant is issued pursuant to a Warrant Purchase Agreement between Universal Capital Management, Inc. and the Company, dated April 30, 2008, and is subject to all the terms thereof, including the vesting schedules set forth in Section 1 thereof, and the limitations on transferability set forth in Section 3 thereof.
 
1.   This Warrant may be exercised by the holder hereof, in whole or in part (but not as to a fractional share), by the presentation and surrender of this Warrant with the form of Election to Purchase duly executed, at the principal office of the Company (or at such other address as the Company may designate by notice in writing to the holder hereof at the address of such holder appearing on the books of the Company), and upon payment to the Company of the purchase price by certified or bank cashier's check. The shares of Common Stock so purchased shall be deemed to be issued to the holder hereof as the record owner of such shares of Common Stock as of the close of business on the date on which this Warrant shall have been surrendered and payment made for such shares. Certificates for the shares of Common Stock so purchased shall be delivered or mailed to the holder promptly after this Warrant has been exercised, and if applicable, a new Warrant identical in form representing the number of shares of Common Stock with respect to which this Warrant shall not then have been exercised shall also be issued to the holder hereof.
 
 
 

 
 
2.   Nothing contained herein shall be construed to confer upon the holder of this Warrant, as such, any of the rights of a shareholder of the Company.

3.   The Company shall not issue certificates representing fractions of shares of Common Stock upon the exercise of this Warrant, but shall make a cash payment for any fractional share based on the market price of the Common Stock on the date of exercise, which shall be the closing sale price on the principal exchange on which the Common Stock is traded; or if not traded on any exchange, then the representative closing bid price in the over-the-counter market; or if not traded in the over-the-counter market, the fair market value as determined by the Company’s board of directors. All calculations under this Section 3 and under Section 5 shall be made to the nearest cent or shares, as the case may be.

4.   Subject to the limitations on transfer set forth in Section 3 of the Warrant Purchase Agreement, this Warrant is exchangeable, upon its surrender by the holder at the office of the Company referred to in Section 1 above, for new warrants (containing the same terms as this Warrant) each representing the right to purchase such number of shares of Common Stock as shall be designated by such holder at the time of such surrender (but not exceeding in the aggregate the remaining number of shares of Common Stock which may be purchased hereunder). Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and upon delivery of a bond of indemnity satisfactory to the Company (or, in the case of mutilation, upon surrender of this Warrant), the Company will issue to the holder a replacement warrant (containing the same terms as this Warrant). As used herein, "Warrant" shall include all new warrants issued in exchange for or replacement of this Warrant.
 
 
 

 
 
5.   If the Company shall pay a dividend in shares of its Common Shares, subdivide (forward-split) its outstanding shares of Common Stock, combine (reverse-split) its outstanding shares of Common Stock, issue by reclassification of its shares of Common Stock any shares or other securities of the Company, or distribute to holders of its Common Stock any securities of the Company or of another entity, the number of shares of Common Stock or other securities the holder hereof is entitled to purchase pursuant to this Warrant immediately prior thereto shall be adjusted so that the holder shall be entitled to receive upon exercise the number of shares of Common Stock or other securities which he or she would have owned or would have been entitled to receive after the happening of any of the events described above had this Warrant been exercised immediately prior to the happening of such event, and the exercise price per share shall be correspondingly adjusted; provided, however, that no adjustment in the number of shares and/or the exercise price shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in such number and/or price; and provided further, however, that any adjustments which by reason of this Section 5 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. An adjustment made pursuant to this Section 5 shall become effective immediately after the record date in the case of the stock dividend or other distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. The holder of this Warrant shall be entitled to participate in any subscription or other rights offering made to holders of Common Stock had he purchased the full number of shares as to which this Warrant remains unexercised immediately prior to the record date for such rights offering. If the Company is consolidated or merged with or into another corporation or if all or substantially all of its assets are conveyed to another corporation this Warrant shall thereafter be exercisable for the purchase of the kind and number of shares of stock or other securities or property, if any, receivable upon such consolidation, merger or conveyance by a holder of the number of shares of Common Stock of the Company which could have been purchased on the exercise of this Warrant immediately prior to such consolidation, merger or conveyance; and, in any such case, appropriate adjustment (as determined by the Board of Directors) shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the holder of this Warrant to the end that the provisions set forth herein (including provisions with respect to changes in and other adjustments of the number of shares of Common Stock the holder of this Warrant is entitled to purchase) shall thereafter be applicable, as nearly as possible, in relation to any shares of Common Stock or other securities or other property thereafter deliverable upon the exercise of this Warrant. Upon any adjustment of the number of shares of Common Stock or other securities the holder of this Warrant is entitled to purchase, and of any change in exercise price per share, then in each such case the Company shall give written notice thereof to the then registered holder of this Warrant at the address of such holder as shown on the books of the Company, which notice shall state such change and set forth in reasonable detail the method of calculation and the facts upon which such calculation is based.
 
6.   If at any time:

A.
The Company shall declare a dividend or other distribution on its Common Stock payable otherwise than in cash at the same rate as the immediately preceding regular dividend or in Common Stock;

B.
The Company shall authorize the granting to the holders of its Common Stock of rights to subscribe for or purchase any shares of capital stock of any class or of any other rights;

C.
There shall be any plan or agreement of reorganization, or reclassification of the capital stock of the Company, or consolidation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or

D.
There shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company; then the Company shall give to the registered holder of this Warrant at the address of such holder as shown on the books of the Company, at any time prior to the applicable record date or dates, a written notice summarizing such action or event and stating the record date or dates for any such dividend or rights (or if a record is not to be taken, the date or dates as of which the holders of Common Stock of record to be entitled to such dividend or rights are to be determined), the date on which any such reorganization, reclassification, consolidation, merger, sale of assets, dissolution, liquidation or winding up is expected to become effective, and the date or dates as of which it is expected the holders of Common Stock of record shall be entitled to effect any exchange of their shares of Common Stock for securities of other property deliverable upon any such reorganization, reclassification, consolidation, merger, sale of assets, dissolution, liquidation or winding up.

IN WITNESS WHEREOF , the Company has caused this Warrant to be signed by its duly authorized officers on April 30, 2008.



Attested:
VYSTAR CORPORATION
   
   
   
By:_______________________
By:  ________________________________________
 
  William R Doyle , President & Chief Executive Officer  

 
 

 
 



VYSTAR CORPORATION
 
2004 LONG-TERM INCENTIVE COMPENSATION PLAN

 
 

 

VYSTAR CORPORATION
 
2004 LONG-TERM INCENTIVE COMPENSATION PLAN
 
1.
Purpose
1
     
2.
Definitions
1
     
3.
Administration
6
     
4.
Shares Subject to Plan
7
     
5.
Eligibility
9
     
6.
Specific Terms of Awards
9
     
7.
Certain Provisions Applicable to Awards
15
     
8.
Code Section 162(m) Provisions
17
     
9.
Change in Control
19
     
10.
General Provisions
21
 
 
 

 

VYSTAR CORPORATION
 
2004 LONG-TERM INCENTIVE COMPENSATION PLAN
 
1.            Purpose .  The purpose of this 2004 LONG TERM INCENTIVE COMPENSATION PLAN (the “Plan”) is to assist VYSTAR CORPORATION, a Georgia corporation (the “Company”) and its Related Entities (as hereinafter defined) in attracting, motivating, retaining and rewarding high-quality executives and other employees, officers, directors, consultants and other persons who provide services to the Company or its Related Entities by enabling such persons to acquire or increase a proprietary interest in the Company in order to strengthen the mutuality of interests between such persons and the Company's shareholders, and providing such persons with annual and long term performance incentives to expend their maximum efforts in the creation of shareholder value.
 
2.            Definitions .  For purposes of the Plan, the following terms shall be defined as set forth below, in addition to such terms defined in Section 1 hereof and elsewhere herein.
 
(a)           “ Award ” means any Option, Stock Appreciation Right, Restricted Stock Award, Deferred Stock Award, Share granted as a bonus or in lieu of another Award, Dividend Equivalent, Other Stock-Based Award or Performance Award, together with any other right or interest, granted to a Participant under the Plan.
 
(b)           “ Award Agreement ” means any written agreement, contract or other instrument or document evidencing any Award granted by the Committee hereunder.
 
(c)           “ Beneficiary ” means the person, persons, trust or trusts that have been designated by a Participant in his or her most recent written beneficiary designation filed with the Committee to receive the benefits specified under the Plan upon such Participant's death or to which Awards or other rights are transferred if and to the extent permitted under Section 10(b) hereof.  If, upon a Participant's death, there is no designated Beneficiary or surviving designated Beneficiary, then the term Beneficiary means the person, persons, trust or trusts entitled by will or the laws of descent and distribution to receive such benefits.
 
(d)           “ Beneficial Owner and “Beneficial Ownership” shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act and any successor to such Rule.
 
(e)           “ Board ” means the Company's Board of Directors.
 
(f)           “ Cause ” shall, with respect to any Participant, have the meaning specified in the Award Agreement.  In the absence of any definition in the Award Agreement, “Cause” shall have the equivalent meaning or the same meaning as “cause” or “for cause” set forth in any employment, consulting, or other agreement for the performance of services between the Participant and the Company or a Related Entity or, in the absence of any such agreement or any such definition in such agreement, such term shall mean (i) the failure by the Participant to perform, in a reasonable manner, his or her duties as assigned by the Company or a Related Entity, (ii) any violation or breach by the Participant of his or her employment, consulting or other similar agreement with the Company or a Related Entity, if any, (iii) any violation or breach by the Participant of any non-competition, non-solicitation, non-disclosure and/or other similar agreement with the Company or a Related Entity, (iv) any act by the Participant of dishonesty or bad faith with respect to the Company or a Related Entity, (v) use of alcohol, drugs or other similar substances in a manner that adversely affects the Participant’s work performance, or (vi) the commission by the Participant of any act, misdemeanor, or crime reflecting unfavorably upon the Participant or the Company or any Related Entity.  The good faith determination by the Committee of whether the Participant’s Continuous Service was terminated by the Company for “Cause” shall be final and binding for all purposes hereunder.

 
 

 

(g)           “ Change in Control ” means a Change in Control as defined in Section 9(b) of the Plan.
 
(h)           “ Code ” means the Internal Revenue Code of 1986, as amended from time to time, including regulations thereunder and successor provisions and regulations thereto.
 
(i)           “ Committee ” means a committee designated by the Board to administer the Plan; provided, however, that if the Board fails to designate a committee or if there are no longer any members on the committee so designated by the Board, or for any other reason determined by the Board, then the Board shall serve as the Committee.  In the event that the Company becomes a Publicly Held Corporation (as hereinafter defined), then the Committee shall consist of at least two directors, each of whom shall be (i) a “non-employee director” within the meaning of  Rule 16b-3 (or any successor rule) under the Exchange Act, unless administration of the Plan by “non-employee directors” is not then required in order for exemptions under Rule 16b-3 to apply to transactions under the Plan, (ii) an “outside director” within the meaning of Section 162(m) of the Code, and (iii) “Independent”, the failure of the Committee to be so comprised shall not invalidate any Award that otherwise satisfies the terms of the Plan.
 
(j)           “ Consultant ” means any Person (other than an Employee or a Director, solely with respect to rendering services in such Person’s capacity as a director) who is engaged by the Company or any Related Entity to render consulting or advisory services to the Company or such Related Entity.
 
(k)           “ Continuous Service ” means the uninterrupted provision of services to the Company or any Related Entity in any capacity of Employee, Director, Consultant or other service provider.  Continuous Service shall not be considered to be interrupted in the case of (i) any approved leave of absence, (ii) transfers among the Company, any Related Entities, or any successor entities, in any capacity of Employee, Director, Consultant or other service provider, or (iii) any change in status as long as the individual remains in the service of the Company or a Related Entity in any capacity of Employee, Director, Consultant or other service provider (except as otherwise provided in the Award Agreement).  An approved leave of absence shall include sick leave, military leave, or any other authorized personal leave.
 
(l)           “ Deferred Stock ” means a right to receive Shares, including Restricted Stock, cash measured based upon the value of Shares or a combination thereof, at the end of a specified deferral period.

 
2

 

(m)           “ Deferred Stock Award ” means an Award of Deferred Stock granted to a Participant under Section 6(e) hereof.
 
(n)           “ Director ” means a member of the Board or the board of directors of any Related Entity.
 
(o)           “ Disability ” means a permanent and total disability (within the meaning of Section 22(e) of the Code), as determined by a medical doctor satisfactory to the Committee.
 
(p)           “ Discounted Option ” means any Option Awarded under Section 6(b) hereof  with an exercise price that is less than the Fair Market Value of a Share on the date of grant.
 
(q)           “ Discounted Stock Appreciation Right ” means any Stock Appreciation Right Awarded under Section 6(c) hereof  with an exercise price that is less than the Fair Market Value of a Share on the date of grant.
 
(r)           “ Dividend Equivalent ” means a right, granted to a Participant under Section 6(g) hereof, to receive cash, Shares, other Awards or other property equal in value to dividends paid with respect to a specified number of Shares, or other periodic payments.
 
(s)           “ Effective Date ” means the effective date of the Plan, which shall be November 30, 2004.
 
(t)           “ Eligible Person ” means each officer, Director, Employee, Consultant and other person who provides services to the Company or any Related Entity.  The foregoing notwithstanding, only Employees of the Company, or any parent corporation or subsidiary corporation of the Company (as those terms are defined in Sections 424(e) and (f) of the Code, respectively), shall be Eligible Persons for purposes of receiving any Incentive Stock Options.  An Employee on leave of absence may, in the discretion of the Committee, be considered as still in the employ of the Company or a Related Entity for purposes of eligibility for participation in the Plan.
 
(u)           “ Employee ” means any person, including an officer or Director, who is an employee of the Company or any Related Entity.  The payment of a director’s fee by the Company or a Related Entity shall not be sufficient to constitute “employment” by the Company.
 
(v)           “ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, including rules thereunder and successor provisions and rules thereto.
 
(w)           “ Fair Market Value ” means the fair market value of Shares, Awards or other property as determined by the Committee, or under procedures established by the Committee.  Unless otherwise determined by the Committee, the Fair Market Value of a Share as of any given date after which the Company is a Publicly Held Corporation shall be the closing sale price per Share reported on a consolidated basis for stock listed on the principal stock exchange or market on which Shares are traded on the date immediately preceding the date as of which such value is being determined (or as of such later measurement date as determined by the Committee on the date the Award is authorized by the Committee), or, if there is no sale on that date, then on the last previous day on which a sale was reported.

 
3

 

(x)           “ Good Reason ” shall, with respect to any Participant, have the meaning specified in the Award Agreement.  In the absence of any definition in the Award Agreement, “Good Reason” shall have the equivalent meaning or the same meaning as “good reason” or “for good reason” set forth in any employment, consulting or other agreement for the performance of services between the Participant and the Company or a Related Entity or, in the absence of any such agreement or any such definition in such agreement, such term shall mean (i) the assignment to the Participant of any duties inconsistent in any material respect with the Participant's duties or responsibilities as assigned by the Company or a Related Entity, or any other action by the Company or a Related Entity which results in a material diminution in such duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and action which is remedied by the Company or a Related Entity promptly after receipt of notice thereof given by the Participant; (ii) any material failure by the Company or a Related Entity to comply with its obligations to the Participant as agreed upon, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and a failure which is remedied by the Company or a Related Entity promptly after receipt of notice thereof given by the Participant; or (iii) the Company's or Related Entity’s requiring the Participant to be based at any office or location outside of fifty miles from the location of employment or service as of the date of Award, except for travel reasonably required in the performance of the Participant’s responsibilities.
 
(y)           “ Incentive Stock Option ” means any Option intended to be designated as an incentive stock option within the meaning of Section 422 of the Code or any successor provision thereto.
 
(z)           “ Independent ”, when referring to either the Board or members of the Committee, shall have the same meaning as used in the rules of the Listing Market.
 
(aa)           “ Incumbent Board ” means the Incumbent Board as defined in Section 9(b)(ii) hereof.
 
(bb)            “Listing Market” means the New York Stock Exchange or any other national securities exchange on which any securities of the Company are listed for trading, and if not listed for trading, by the rules of the Nasdaq Market.
 
(cc)           “ Option ” means a right granted to a Participant under Section 6(b) hereof, to purchase Shares or other Awards at a specified price during specified time periods.
 
(dd)           “ Optionee ” means a person to whom an Option is granted under this Plan or any person who succeeds to the rights of such person under this Plan.
 
(ee)           “ Option Proceeds ” means the cash actually received by the Company for the exercise price in connection with the exercise of Options that are exercised after the Effective Date of the Plan, plus the maximum tax benefit that could be realized by the Company as a result of the exercise of such Options, which tax benefit shall be determined by multiplying (i) the amount that is deductible for Federal income tax purposes as a result of any such option exercise (currently, equal to the amount upon which the Participant's withholding tax obligation is calculated), times (ii) the maximum Federal corporate income tax rate for the year of exercise.  With respect to Options, to the extent that a Participant pays the exercise price and/or withholding taxes with Shares, Option Proceeds shall not be calculated with respect to the amounts so paid in Shares.

 
4

 

(ff)           “ Other Stock-Based Awards ” means Awards granted to a Participant under Section 6(i) hereof.
 
(gg)           “ Participant ” means a person who has been granted an Award under the Plan which remains outstanding, including a person who is no longer an Eligible Person.
 
(hh)           “ Performance Award ” means any Award of Performance Shares or Performance Units granted pursuant to Section 6(h) hereof.
 
(ii)           “ Performance Period ” means that period established by the Committee at the time any Performance Award is granted or at any time thereafter during which any performance goals specified by the Committee with respect to such Award are to be measured.
 
(jj)           “ Performance Share ” means any grant pursuant to Section 6(h) hereof of a unit valued by reference to a designated number of Shares, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including cash, Shares, other property, or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee shall establish at the time of such grant or thereafter.
 
(kk)           “ Performance Unit ” means any grant pursuant to Section 6(h) hereof of a unit valued by reference to a designated amount of property (including cash) other than Shares, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including cash, Shares, other property, or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee shall establish at the time of such grant or thereafter.
 
(ll)           “ Person ” shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, and shall include a “group” as defined in Section 13(d) thereof.
 
(mm)       “ Publicly Held Corporation ” shall mean a publicly held corporation as that term is used under Section 162(m)(2) of the Code.
 
(nn)           “ Related Entity ” means any Subsidiary, and any business, corporation, partnership, limited liability company or other entity designated by the Board, in which the Company  or a Subsidiary holds a  substantial ownership interest, directly or indirectly.
 
(oo)            “Restriction Period” means the period of time specified by the Committee that Restricted Stock Awards shall be subject to such restrictions on transferability, risk of forfeiture and other restrictions, if any, as the Committee may impose.

 
5

 

(pp)           “ Restricted Stock ” means any Share issued with the restriction that the holder may not sell, transfer, pledge or assign such Share and with such risks of forfeiture and other restrictions as the Committee, in its sole discretion, may impose (including any restriction on the right to vote such Share and the right to receive any dividends), which restrictions may lapse separately or in combination at such time or times, in installments or otherwise, as the Committee may deem appropriate.
 
(qq)           “ Restricted Stock Award ” means an Award granted to a Participant under Section 6(d) hereof.
 
(rr)           “ Rule 16b-3 ” means Rule 16b-3, as from time to time in effect and applicable to the Plan and Participants, promulgated by the Securities and Exchange Commission under Section 16 of the Exchange Act.
 
(ss)           “ Shares ” means the shares of Class B Common Stock of the Company, par value $0.001 per share, and such other securities as may be substituted (or resubstituted) for Shares pursuant to Section 10(c) hereof.
 
(tt)           “ Stock Appreciation Right ” means a right granted to a Participant under Section 6(c) hereof.
 
(uu)           “ Subsidiary ” means any corporation or other entity in which the Company has a direct or indirect ownership interest of 50% or more of the total combined voting power of the then outstanding securities or interests of such corporation or other entity entitled to vote generally in the election of directors or in which the Company has the right to receive 50% or more of the distribution of profits or 50% or more of the assets on liquidation or dissolution.
 
(vv)           “ Substitute Awards ” means Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, Awards previously granted, or the right or obligation to make future Awards, by a company (i) acquired by the Company or any Related Entity, (ii) which becomes a Related Entity after the date hereof, or (iii) with which the Company or any Related Entity combines.
 
3.            Administration .
 
(a)             Authority of the Committee .  The Plan shall be administered by the Committee; provided, however, that except as otherwise expressly provided in this Plan, the Board may exercise any power or authority granted to the Committee under this Plan and in that case, references herein shall be deemed to include references to the Board.  The Committee shall have full and final authority, subject to and consistent with the provisions of the Plan, to select Eligible Persons to become Participants, grant Awards, determine the type, number and other terms and conditions of, and all other matters relating to, Awards, prescribe Award Agreements (which need not be identical for each Participant) and rules and regulations for the administration of the Plan, construe and interpret the Plan and Award Agreements and correct defects, supply omissions or reconcile inconsistencies therein, and to make all other decisions and determinations as the Committee may deem necessary or advisable for the administration of the Plan.  In exercising any discretion granted to the Committee under the Plan or pursuant to any Award, the Committee shall not be required to follow past practices, act in a manner consistent with past practices, or treat any Eligible Person or Participant in a manner consistent with the treatment of any other Eligible Persons or Participants.

 
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(b)             Manner of Exercise of Committee Authority. In the event that the Company becomes a Publicly Held Corporation, the Committee, and not the Board, shall exercise sole and exclusive discretion (i) on any matter relating to a Participant then subject to Section 16 of the Exchange Act with respect to the Company to the extent necessary in order that transactions by such Participant shall be exempt under Rule 16b-3 under the Exchange Act, (ii) with respect to any Award that is intended to qualify as “performance-based compensation” under Section 162(m), to the extent necessary in order for such Award to so qualify; and (iii) with respect to any Award to an Independent Director.  Any action of the Committee shall be final, conclusive and binding on all persons, including the Company, its Related Entities, Eligible Persons, Participants, Beneficiaries, transferees under Section 10(b) hereof or other persons claiming rights from or through a Participant, and shareholders.  The express grant of any specific power to the Committee, and the taking of any action by the Committee, shall not be construed as limiting any power or authority of the Committee.  The Committee may delegate to officers or managers of the Company or any Related Entity, or committees thereof, the authority, subject to such terms and limitations as the Committee shall determine, to perform such functions, including administrative functions as the Committee may determine to the extent that such delegation will not result in the loss of an exemption under Rule 16b-3(d)(1) for Awards granted to Participants subject to Section 16 of the Exchange Act in respect of the Company and will not cause Awards intended to qualify as “performance-based compensation” under Code Section 162(m) to fail to so qualify.  The Committee may appoint agents to assist it in administering the Plan.  Any such delegations shall be set forth in a written instrument that specifies the persons authorized to act thereunder and the terms and limitations of such authority, which writing shall be delivered to the Company’s Chief Financial Officer, Principal Accounting Officer and General Counsel before any authority may be exercised.
 
(c)             Limitation of Liability .  The Committee and the Board, and each member thereof, shall be entitled to, in good faith, rely or act upon any report or other information furnished to him or her by any officer or Employee, the Company's independent auditors, Consultants or any other agents assisting in the administration of the Plan.  Members of the Committee and the Board, and any officer or Employee acting at the direction or on behalf of the Committee or the Board, shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the extent permitted by law, be fully indemnified and protected by the Company with respect to any such action or determination.
 
4.            Shares Subject to Plan .
 
(a)             Limitation on Overall Number of Shares Available for Delivery Under Plan .  Subject to adjustment as provided in Section 10(c) hereof, the total number of Shares reserved and available for delivery under the Plan shall be 10,000,000.  Any Shares that are subject to Awards of Options or Stock Appreciation Rights shall be counted against this limit as one (1) Share for every one (1) Share granted.  Any Shares that are subject to Awards other than Options or Stock Appreciation Rights shall be counted against this limit as one and one-half (1.5) Shares for every one (1) Share granted.  Any Shares delivered under the Plan may consist, in whole or in part, of authorized and unissued shares or treasury shares.

 
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(b)             Application of Limitation to Grants of Awards. .  No Award may be granted if the number of Shares to be delivered in connection with such an Award exceeds the number of Shares remaining available for delivery under the Plan, minus the number of Shares deliverable in settlement of or relating to then outstanding Awards.  The Committee may adopt reasonable counting procedures to ensure appropriate counting, avoid double counting (as, for example, in the case of tandem or substitute awards) and make adjustments if the number of Shares actually delivered differs from the number of Shares previously counted in connection with an Award.
 
(c)             Availability of Shares Not Delivered under Awards and Adjustments to Limits.
 
(i)           If any Awards are forfeited, expire or otherwise terminate without issuance of such Shares, or any Award is settled for cash or otherwise does not result in the issuance of all or a portion of the Shares subject to such Award, the Shares to which those Awards were subject, shall, to the extent of such forfeiture, expiration, termination, cash settlement or non-issuance, again be available for delivery with respect to Awards under the Plan, subject to Section 4(c)(iii)(iv) below.
 
(ii)           In the event that any Option or other Award granted hereunder is exercised through the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, or withholding tax liabilities arising from such option or other award are satisfied by the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, then only the number of Shares issued net of the Shares tendered or withheld shall be counted for purposes of   determining the maximum number of Shares available for grant under the Plan.
 
(iii)           Substitute Awards shall not reduce the Shares authorized for delivery under the Plan or authorized for delivery to a Participant in any period.  Additionally, in the event that a company acquired by the Company or any Related Entity or with which the Company or any Related Entity combines has shares available under a pre-existing plan approved by its shareholders, the shares available for delivery pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for delivery under the Plan; if and to the extent that the use of such Shares would not require approval of the Company’s shareholders under the rules of the Listing Market.
 
(iv)           Any Share that again becomes available for delivery pursuant to this Section 4(c) shall be added back as one (1) Share if such Share was subject to an Option or Stock Appreciation Right granted under the Plan, and as one and one-half (1.5) Shares if such Share was subject to an Award other than an Option or Stock Appreciation Right granted under the Plan.
 
(v)           Notwithstanding anything in this Section 4(c) to the contrary but subject to adjustment as provided in Section 10(c) hereof, the maximum aggregate number of Shares that may be delivered under the Plan as a result of the exercise of the Incentive Stock Options shall be [          ] Shares.

 
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5.            Eligibility .  Awards may be granted under the Plan only to Eligible Persons.
 
6.            Specific Terms of Awards .
 
(a)             General .  Awards may be granted on the terms and conditions set forth in this Section 6.  In addition, the Committee may impose on any Award or the exercise thereof, at the date of grant or thereafter (subject to Section 10(e)), such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms requiring forfeiture of Awards in the event of termination of the Participant’s Continuous Service and terms permitting a Participant to make elections relating to his or her Award.  Except as otherwise expressly provided herein, the Committee shall retain full power and discretion to accelerate, waive or modify, at any time, any term or condition of an Award that is not mandatory under the Plan.  Except in cases in which the Committee is authorized to require other forms of consideration under the Plan, or to the extent other forms of consideration must be paid to satisfy the requirements of Georgia law, no consideration other than services may be required for the grant (as opposed to the exercise) of any Award.
 
(b)             Options .  The Committee is authorized to grant Options to any Eligible Person on the following terms and conditions:
 
(i)            Exercise Price .  Other than in connection with Substitute Awards, the exercise price per Share purchasable under an Option shall be determined by the Committee, provided that such exercise price shall not, in the case of Incentive Stock Options, be less than 100% of the Fair Market Value of a Share on the date of grant of the Option and shall not, in any event, be less than the par value of a Share on the date of grant of the Option.  If an Employee owns or is deemed to own (by reason of the attribution rules applicable under Section 424(d) of the Code) more than 10% of the combined voting power of all classes of stock of the Company (or any parent corporation or subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) and an Incentive Stock Option is granted to such Employee, the exercise price of such Incentive Stock Option (to the extent required by the Code at the time of grant) shall be no less than 110% of the Fair Market Value of a Share on the date such Incentive Stock Option is granted. Other than pursuant to Section 10(c)(i) and (ii), the Committee shall not be permitted to (A) lower the exercise price per Share of an Option after it is granted, (B) cancel an Option when the exercise price per Share exceeds the Fair Market Value of the underlying Shares in exchange for another Award (other than in connection with  Substitute Awards), or (C) take any other action with respect to an Option that may be treated as a repricing pursuant to the applicable rules of the Listing Market, without approval of the Company's shareholders.

 
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(ii)            Time and Method of Exercise .  The Committee shall determine the time or times at which or the circumstances under which an Option may be exercised in whole or in part (including based on achievement of performance goals and/or future service requirements), the time or times at which Options shall cease to be or become exercisable following termination of Continuous Service or upon other conditions, the methods by which the exercise price may be paid or deemed to be paid (including in the discretion of the Committee a cashless exercise procedure), the form of such payment, including, without limitation, cash, Shares (including without limitation the withholding of Shares otherwise deliverable pursuant to the Award), other Awards or awards granted under other plans of the Company or a Related Entity, or other property (including notes or other contractual obligations of Participants to make payment on a deferred basis provided that such deferred payments are not in violation of Section 13(k) of the Exchange Act, or any rule or regulation adopted thereunder or any other applicable law), and the methods by or forms in which Shares will be delivered or deemed to be delivered to Participants.
 
(iii)            Incentive Stock Options .  The terms of any Incentive Stock Option granted under the Plan shall comply in all respects with the provisions of Section 422 of the Code.  Anything in the Plan to the contrary notwithstanding, no term of the Plan relating to Incentive Stock Options (including any Stock Appreciation Right issued in tandem therewith) shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be exercised, so as to disqualify either the Plan or any Incentive Stock Option under Section 422 of the Code, unless the Participant has first requested, or consents to, the change that will result in such disqualification.  Thus, if and to the extent required to comply with Section 422 of the Code, Options granted as Incentive Stock Options shall be subject to the following special terms and conditions:
 
(A)           the Option shall not be exercisable for more than ten years after the date such Incentive Stock Option is granted; provided, however, that if a Participant owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than 10% of the combined voting power of all classes of stock of the Company (or any parent corporation or subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) and the Incentive Stock Option is granted to such Participant, the term of the Incentive Stock Option shall be (to the extent required by the Code at the time of the grant) for no more than five years from the date of grant; and
 
(B)           The aggregate Fair Market Value (determined as of the date the Incentive Stock Option is granted) of the Shares with respect to which Incentive Stock Options granted under the Plan and all other option plans of the Company (and any parent corporation or subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) that become exercisable for the first time by the Participant during any calendar year shall not (to the extent required by the Code at the time of the grant) exceed $100,000.
 
(c)             Stock Appreciation Rights .  The Committee may grant Stock Appreciation Rights to any Eligible Person in conjunction with all or part of any Option granted under the Plan or at any subsequent time during the term of such Option (a “Tandem Stock Appreciation Right”), or without regard to any Option (a “Freestanding Stock Appreciation Right”), in each case upon such terms and conditions as the Committee may establish in its sole discretion, not inconsistent with the provisions of the Plan, including the following:

 
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(i)            Right to Payment .  A Stock Appreciation Right shall confer on the Participant to whom it is granted a right to receive, upon exercise thereof, the excess of (A) the Fair Market Value of one Share on the date of exercise over (B) the grant price of the Stock Appreciation Right as determined by the Committee.  The grant price of a Stock Appreciation Right  shall not be less than 100% of the Fair Market Value of a Share on the date of grant, in the case of a Freestanding Stock Appreciation Right, or less than the associated Option exercise price, in the case of a Tandem Stock Appreciation Right.  Other than pursuant to Section 10(c)(i) and (ii), the Committee shall not be permitted to (A) lower the grant price per Share of a Stock Appreciation Right after it is granted, (B) cancel a Stock Appreciation Right when the grant price per Share exceeds the Fair Market Value of the underlying Shares in exchange for another Award (other than in connection with  Substitute Awards), or (C) take any other action with respect to a Stock Appreciation Right that may be treated as a repricing pursuant to the applicable rules of the Listing Market, without shareholder approval.
 
(ii)            Other Terms .  The Committee shall determine at the date of grant or thereafter, the time or times at which and the circumstances under which a Stock Appreciation Right may be exercised in whole or in part (including based on achievement of performance goals and/or future service requirements), the time or times at which Stock Appreciation Rights shall cease to be or become exercisable following termination of Continuous Service or upon other conditions, the method of exercise, method of settlement, form of consideration payable in settlement, method by or forms in which Shares will be delivered or deemed to be delivered to Participants, whether or not a Stock Appreciation Right shall be in tandem or in combination with any other Award, and any other terms and conditions of any Stock Appreciation Right.
 
(iii)            Tandem Stock Appreciation Rights . Any Tandem Stock Appreciation Right may be granted at the same time as the related Option is granted or, for Options that are not Incentive Stock Options, at any time thereafter before exercise or expiration of such Option.  Any Tandem Stock Appreciation Right related to an Option may be exercised only when the related Option would be exercisable and the Fair Market Value of the Shares subject to the related Option exceeds the exercise price at which Shares can be acquired pursuant to the Option.  In addition, if a Tandem Stock Appreciation Right exists with respect to less than the full number of Shares covered by a related Option, then an exercise or termination of such Option shall not reduce the number of Shares to which the Tandem Stock Appreciation Right applies until the number of Shares then exercisable under such Option equals the number of Shares to which the Tandem Stock Appreciation Right applies. Any Option related to a Tandem Stock Appreciation Right shall no longer be exercisable to the extent the Tandem Stock Appreciation Right has been exercised, and any Tandem Stock Appreciation Right shall no longer be exercisable to the extent the related Option has been exercised.
 
(d)             Restricted Stock Awards .  The Committee is authorized to grant Restricted Stock Awards to any Eligible Person on the following terms and conditions:
 
(i)            Grant and Restrictions .  Restricted Stock Awards shall be subject to such restrictions on transferability, risk of forfeiture and other restrictions, if any, as the Committee may impose, or as otherwise provided in this Plan during the Restriction Period.  The terms of any Restricted Stock Award granted under the Plan shall be set forth in a written Award Agreement which shall contain provisions determined by the Committee and not inconsistent with the Plan.  The restrictions may lapse separately or in combination at such times, under such circumstances (including based on achievement of performance goals and/or future service requirements), in such installments or otherwise, as the Committee may determine at the date of grant or thereafter.  Except to the extent restricted under the terms of the Plan and any Award Agreement relating to a Restricted Stock Award, a Participant granted Restricted Stock shall have all of the rights of a shareholder, including the right to vote the Restricted Stock and the right to receive dividends thereon (subject to any mandatory reinvestment or other requirement imposed by the Committee).  During the period that the Restriction Stock Award is subject to a risk of forfeiture, subject to Section 10(b) below and except as otherwise provided in the Award Agreement, the Restricted Stock may not be sold, transferred, pledged, hypothecated, margined or otherwise encumbered by the Participant.

 
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(ii)            Forfeiture .  Except as otherwise determined by the Committee, upon termination of a Participant's Continuous Service during the applicable Restriction Period, the Participant's Restricted Stock that is at that time subject to a risk of forfeiture that has not lapsed or otherwise been satisfied shall be forfeited and reacquired by the Company; provided that, subject to the limitations set forth in Section 6(j)(ii) hereof, the Committee may provide, by rule or regulation or in any Award Agreement, or may determine in any individual case, that forfeiture conditions relating to Restricted Stock Awards shall be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of Restricted Stock.
 
(iii)            Certificates for Stock .  Restricted Stock granted under the Plan may be evidenced in such manner as the Committee shall determine.  If certificates representing Restricted Stock are registered in the name of the Participant, the Committee may require that such certificates bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Restricted Stock, that the Company retain physical possession of the certificates, and that the Participant deliver a stock power to the Company, endorsed in blank, relating to the Restricted Stock.
 
(iv)            Dividends and Splits .  As a condition to the grant of a Restricted Stock Award, the Committee may require or permit a Participant to elect that any cash dividends paid on a Share of Restricted Stock be automatically reinvested in additional Shares of Restricted Stock or applied to the purchase of additional Awards under the Plan.  Unless otherwise determined by the Committee, Shares distributed in connection with a stock split or stock dividend, and other property distributed as a dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock with respect to which such Shares or other property have been distributed.
 
(e)             Deferred Stock Award .  The Committee is authorized to grant Deferred Stock Awards to any Eligible Person on the following terms and conditions:
 
(i)            Award and Restrictions .  Satisfaction of a Deferred Stock Award shall occur upon expiration of the deferral period specified for such Deferred Stock Award by the Committee (or, if permitted by the Committee, as elected by the Participant).  In addition, a Deferred Stock Award shall be subject to such restrictions (which may include a risk of forfeiture) as the Committee may impose, if any, which restrictions may lapse at the expiration of the deferral period or at earlier specified times (including based on achievement of performance goals and/or future service requirements), separately or in combination, in installments or otherwise, as the Committee may determine.  A Deferred Stock Award may be satisfied by delivery of Shares, cash equal to the Fair Market Value of the specified number of Shares covered by the Deferred Stock, or a combination thereof, as determined by the Committee at the date of grant or thereafter.  Prior to satisfaction of a Deferred Stock Award, a Deferred Stock Award carries no voting or dividend or other rights associated with Share ownership.

 
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(ii)            Forfeiture .  Except as otherwise determined by the Committee, upon termination of a Participant's Continuous Service during the applicable deferral period or portion thereof to which forfeiture conditions apply (as provided in the Award Agreement evidencing the Deferred Stock Award), the Participant's Deferred Stock Award that is at that time subject to a risk of forfeiture that has not lapsed or otherwise been satisfied shall be forfeited; provided that, subject to the limitations set forth in Section 6(j)(ii) hereof, the Committee may provide, by rule or regulation or in any Award Agreement, or may determine in any individual case, that forfeiture conditions relating to a Deferred Stock Award shall be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of any Deferred Stock Award.
 
(iii)            Dividend Equivalents .  Unless otherwise determined by the Committee at the date of grant, any Dividend Equivalents that are granted with respect to any Deferred Stock Award shall be either (A) paid with respect to such Deferred Stock Award at the dividend payment date in cash or in Shares of unrestricted stock having a Fair Market Value equal to the amount of such dividends, or (B) deferred with respect to such Deferred Stock Award and the amount or value thereof automatically deemed reinvested in additional Deferred Stock, other Awards or other investment vehicles, as the Committee shall determine or permit the Participant to elect.  The applicable Award Agreement shall specify whether any Dividend Equivalents shall be paid at the dividend payment date, deferred or deferred at the election of the Participant.  If the Participant may elect to defer the Dividend Equivalents, such election shall be made within 30 days after the grant date of the Deferred Stock Award, but in no event later than 12 months before the first date on which any portion of such Deferred Stock Award vests.
 
(f)             Bonus Stock and Awards in Lieu of Obligations .  The Committee is authorized to grant Shares to any Eligible Persons as a bonus, or to grant Shares or other Awards in lieu of obligations to pay cash or deliver other property under the Plan or under other plans or compensatory arrangements, provided that, in the case of Eligible Persons subject to Section 16 of the Exchange Act, the amount of such grants remains within the discretion of the Committee to the extent necessary to ensure that acquisitions of Shares or other Awards are exempt from liability under Section 16(b) of the Exchange Act.  Shares or Awards granted hereunder shall be subject to such other terms as shall be determined by the Committee.
 
(g)             Dividend Equivalents .  The Committee is authorized to grant Dividend Equivalents in connection with another Award granted to any Eligible Person entitling the Eligible Person to receive cash, Shares, other Awards, or other property equal in value to the dividends paid with respect to a specified number of Shares, or other periodic payments.  Dividend Equivalents may be awarded on a free-standing basis or in connection with another Award.  The Committee may provide that Dividend Equivalents shall be paid or distributed when accrued or shall be deemed to have been reinvested in additional Shares, Awards, or other investment vehicles, and subject to such restrictions on transferability and risks of forfeiture, as the Committee may specify.  Any such determination by the Committee shall be made at the grant date of the applicable Award.

 
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(h)            Performance Awards .  The Committee is authorized to grant Performance Awards to any Eligible Person payable in cash, Shares, or other Awards, on terms and conditions established by the Committee, subject to the provisions of Section 8 if and to the extent that the Committee shall, in its sole discretion, determine that an Award shall be subject to those provisions.  The performance criteria to be achieved during any Performance Period and the length of the Performance Period shall be determined by the Committee upon the grant of each Performance Award; provided, however, that a Performance Period shall not be shorter than 12 months nor longer than four years.  Except as provided in Section 9 or as may be provided in an Award Agreement, Performance Awards will be distributed only after the end of the relevant Performance Period.  The performance goals to be achieved for each Performance Period shall be conclusively determined by the Committee and may be based upon the criteria set forth in Section 8(b), or in the case of an Award that the Committee determines shall not be subject to Section 8 hereof, any other criteria that the Committee, in its sole discretion, shall determine should be used for that purpose.  The amount of the Award to be distributed shall be conclusively determined by the Committee.  Performance Awards may be paid in a lump sum or in installments following the close of the Performance Period or, in accordance with procedures established by the Committee, on a deferred basis.
 
(i)            Other Stock-Based Awards .  The Committee is authorized, subject to limitations under applicable law, to grant to any Eligible Person such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares, as deemed by the Committee to be consistent with the purposes of the Plan.  Other Stock-Based Awards may be granted to Participants either alone or in addition to other Awards granted under the Plan, and such Other Stock-Based Awards shall also be available as a form of payment in the settlement of other Awards granted under the Plan.  The Committee shall determine the terms and conditions of such Awards.  Shares delivered pursuant to an Award in the nature of a purchase right granted under this Section 6(i) shall be purchased for such consideration, paid for at such times, by such methods, and in such forms, including, without limitation, cash, Shares, other Awards or other property, as the Committee shall determine.
 
(j)            Certain Vesting Requirements and Limitations on Waiver of Forfeiture Restrictions.   Except for certain limited situations (including death, disability, retirement, a Change in Control referred to in Section 9, grants to new hires to replace forfeited compensation, grants representing payment of earned Performance Awards or other incentive compensation, Substitute Awards or grants to Directors):
 
(i)           Restricted Stock Awards, Deferred Stock Awards, Performance Share Awards and Other Stock-Based Awards (A) that are not subject to performance-based vesting requirements shall vest over a period of not less than three years from date of grant (but permitting pro-rata vesting over such time); (B) that are subject to performance-based vesting requirements shall vest over a period of not less than one year; and

 
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(ii)           The Committee shall not waive the vesting requirements set forth in the foregoing clause (i).
 
The limitations set forth in this Section 6(j) shall not apply with respect to up to [insert number of shares that does not exceed 5% (for a large cap company) or 10% (for a small cap company) of shares available under the Plan) Shares (subject to adjustment as provided in Section 10(c) hereof) with respect to which Awards have been made by Independent Directors.
 
7.            Certain Provisions Applicable to Awards .
 
(a)            Stand-Alone, Additional, Tandem, and Substitute Awards .  Awards granted under the Plan may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution or exchange for, any other Award or any award granted under another plan of the Company, any Related Entity, or any business entity to be acquired by the Company or a Related Entity, or any other right of a Participant to receive payment from the Company or any Related Entity.  Such additional, tandem, and substitute or exchange Awards may be granted at any time.  If an Award is granted in substitution or exchange for another Award or award, the Committee shall require the surrender of such other Award or award in consideration for the grant of the new Award.  In addition, Awards may be granted in lieu of cash compensation, including in lieu of cash amounts payable under other plans of the Company or any Related Entity, in which the value of Shares subject to the Award is equivalent in value to the cash compensation (for example, Deferred Stock or Restricted Stock), or in which the exercise price, grant price or purchase price of the Award in the nature of a right that may be exercised is equal to the Fair Market Value of the underlying Shares minus the value of the cash compensation surrendered (for example, Options or Stock Appreciation Right granted with an exercise price or grant price “discounted” by the amount of the cash compensation surrendered), provided that any such determination to grant an Award in lieu of cash compensation must be made in compliance with Section 409A of the Code.
 
(b)            Term of Awards .  The term of each Award shall be for such period as may be determined by the Committee; provided that in no event shall the term of any Option or Stock Appreciation Right exceed a period of ten years (or in the case of an Incentive Stock Option such shorter term as may be required under Section 422 of the Code).
 
(c)            Form and Timing of Payment Under Awards; Deferrals .  Subject to the terms of the Plan and any applicable Award Agreement, payments to be made by the Company or a Related Entity upon the exercise of an Option or other Award or settlement of an Award may be made in such forms as the Committee shall determine, including, without limitation, cash, Shares, other Awards or other property, and may be made in a single payment or transfer, in installments, or on a deferred basis, provided that any determination to pay in installments or on a deferred basis shall be made by the Committee at the date of grant.  Any installment or deferral provided for in the preceding sentence shall, however, be subject to the Company’s compliance with applicable law and all applicable rules of the Listing Market, and in a manner intended to be exempt from or otherwise satisfy the requirements of Section 409A of the Code.  Subject to Section 7(e) hereof, the settlement of any Award may be accelerated, and cash paid in lieu of Shares in connection with such settlement, in the sole discretion of the Committee or upon occurrence of one or more specified events (in addition to a Change in Control).  Any such settlement shall be at a value determined by the Committee in its sole discretion, which, without limitation, may in the case of an Option or Stock Appreciation Right be limited to the amount if any by which the Fair Market Value of a Share on the settlement date exceeds the exercise or grant price.  Installment or deferred payments may be required by the Committee (subject to Section 7(e) of the Plan, including the consent provisions thereof in the case of any deferral of an outstanding Award not provided for in the original Award Agreement) or permitted at the election of the Participant on terms and conditions established by the Committee.  The Committee may, without limitation, make provision for the payment or crediting of a reasonable interest rate on installment or deferred payments or the grant or crediting of Dividend Equivalents or other amounts in respect of installment or deferred payments denominated in Shares.

 
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(d)            Exemptions from Section 16(b) Liability.  If the Company becomes a Publicly Held Corporation, it is the intent of the Company that the grant of any Awards to or other transaction by a Participant who is subject to Section 16 of the Exchange Act shall be exempt from Section 16 pursuant to an applicable exemption (except for transactions acknowledged in writing to be non-exempt by such Participant).  Accordingly, if any provision of this Plan or any Award Agreement does not comply with the requirements of Rule 16b-3 then applicable to any such transaction, such provision shall be construed or deemed amended to the extent necessary to conform to the applicable requirements of Rule 16b-3 so that such Participant shall avoid liability under Section 16(b).
 
(e)            Code Section 409A .
 
(i)           The Award Agreement for any Award that the Committee reasonably determines to constitute a Section 409A Plan, and the provisions of the Plan applicable to that Award, shall be construed in a manner consistent with the applicable requirements of Section 409A, and the Committee, in its sole discretion and without the consent of any Participant, may amend any Award Agreement (and the provisions of the Plan applicable thereto) if and to the extent that the Committee determines that such amendment is necessary or appropriate to comply with the requirements of Section 409A of the Code.
 
(ii)           If any Award constitutes a “nonqualified deferred compensation plan” under Section 409A of the Code (a “Section 409A Plan”), then the Award shall be subject to the following additional requirements, if and to the extent required to comply with Section 409A of the Code:
 
(A)           Payments under the Section 409A Plan may not be made earlier than the first to occur of (u) the Participant’s “separation from service”, (v) the date the Participant becomes “disabled”, (w) the Participant’s death, (x) a “specified time (or pursuant to a fixed schedule)” specified in the Award Agreement at the date of the deferral of such compensation, (y) a “change in the ownership or effective control of the corporation, or in the ownership of a substantial portion of the assets” of the Company, or (z) the occurrence of an “unforeseeble emergency”;

 
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(B)           The time or schedule for any payment of the deferred compensation may not be accelerated, except to the extent provided in applicable Treasury Regulations or other applicable guidance issued by the Internal Revenue Service;
 
(C)           Any elections with respect to the deferral of such compensation or the time and form of distribution of such deferred compensation shall comply with the requirements of Section 409A(a)(4) of the Code; and
 
(D)           In the case of any Participant who is “specified employee”, a distribution on account of a “separation from service” may not be made before the date which is six months after the date of the Participant’s “separation from service” (or, if earlier, the date of the Participant’s death).
 
For purposes of the foregoing, the terms in quotations shall have the same meanings as those terms have for purposes of Section 409A of the Code, and the limitations set forth herein shall be applied in such manner (and only to the extent) as shall be necessary to comply with any requirements of Section 409A of the Code that are applicable to the Award.  The Company does not make any representation to the Participant that any Awards awarded under this Plan will be exempt from, or satisfy, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify or hold harmless any Participant or Beneficiary for any tax, additional tax, interest or penalties that any Participant or Beneficiary may incur in the event that any provision of this Plan, any Award Agreement, or any amendment or modification thereof, or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A.
 
(iii)           Notwithstanding the foregoing, the Company does not make any representation to any Participant or Beneficiary that any Awards made pursuant to this Plan are exempt from, or satisfy, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify or hold harmless the Participant or any Beneficiary for any tax, additional tax, interest or penalties that the Participant or any Beneficiary may incur in the event that any provision of this Plan, or any Award Agreement, or any amendment or modification thereof, or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A.
 
8.            Code Section 162(m) Provisions .
 
(a)            Covered Employees.  If the Company becomes a Publicly Held Corporation, then, unless otherwise specified by the Committee, the provisions of this Section 8 shall be applicable to any Performance Award granted to an Eligible Person who is, or is likely to be, as of the end of the tax year in which the Company would claim a tax deduction in connection with such Award, a Covered Employee.

 
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(b)            Performance Criteria .  If a Performance Award is subject to this Section 8, then the payment or distribution thereof or the lapsing of restrictions thereon and the distribution of cash, Shares or other property pursuant thereto, as applicable, shall be contingent upon achievement of one or more objective performance goals.  Performance goals shall be objective and shall otherwise meet the requirements of Section 162(m) of the Code and regulations thereunder including the requirement that the level or levels of performance targeted by the Committee result in the achievement of performance goals being “substantially uncertain.”  One or more of the following business criteria for the Company, on a consolidated basis, and/or for Related Entities, or for business or geographical units of the Company and/or a Related Entity (except with respect to the total shareholder return and earnings per share criteria), shall be used by the Committee in establishing performance goals for such Awards: (1) earnings per share; (2) revenues or margins; (3) cash flow; (4) operating margin; (5) return on net assets, investment, capital, or equity; (6) economic value added; (7) direct contribution; (8) net income; pretax earnings; earnings before interest and taxes; earnings before interest, taxes, depreciation and amortization; earnings after interest expense and before extraordinary or special items; operating income or income from operations; income before interest income or expense, unusual items and income taxes, local, state or federal and excluding budgeted and actual bonuses which might be paid under any ongoing bonus plans of the Company; (9) working capital; (10) management of fixed costs or variable costs; (11) identification or consummation of investment opportunities or completion of specified projects in accordance with corporate business plans, including strategic mergers, acquisitions or divestitures; (12) total shareholder return; (13) debt reduction; (14) market share; (15) entry into new markets, either geographically or by business unit; (16) customer retention and satisfaction; (17) strategic plan development and implementation, including turnaround plans; and/or (18) the Fair Market Value of a Share.  Any of the above goals may be determined on an absolute or relative basis or as compared to the performance of a published or special index deemed applicable by the Committee including, but not limited to, the Standard & Poor’s 500 Stock Index or a group of companies that are comparable to the Company.  In determining the achievement of the performance goals, the Committee shall exclude the impact of any (i) restructurings, discontinued operations, extraordinary items, and other unusual or non-recurring charges, (ii) event either not directly related to the operations of the Company or not within the reasonable control of the Company’s management, or (iii) change in accounting standards required by generally accepted accounting principles.
 
(c)            Performance Period; Timing For Establishing Performance Goals .  Achievement of performance goals in respect of Performance Awards shall be measured over a Performance Period no shorter than 12 months and no longer than four years, as specified by the Committee.  Performance goals shall be established not later than 90 days after the beginning of any Performance Period applicable to such Performance Awards, or at such other date as may be required or permitted for “performance-based compensation” under Section 162(m) of the Code.
 
(d)            Adjustments .  The Committee may, in its discretion, reduce the amount of a settlement otherwise to be made in connection with Awards subject to this Section 8, but may not exercise discretion to increase any such amount payable to a Covered Employee in respect of an Award subject to this Section 8.  The Committee shall specify the circumstances in which such Awards shall be paid or forfeited in the event of termination of Continuous Service by the Participant prior to the end of a Performance Period or settlement of Awards.
 
(e)            Committee Certification .  No Participant shall receive any payment under the Plan that is subject to this Section 8 unless the Committee has certified, by resolution or other appropriate action in writing, that the performance criteria and any other material terms previously established by the Committee or set forth in the Plan, have been satisfied to the extent necessary to qualify as "performance based compensation" under Section 162(m) of the Code.

 
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9.            Change in Control .
 
(a)            Effect of “Change in Control.”   If and only to the extent provided in any employment or other agreement between the Participant and the Company or any Related Entity, or in any Award Agreement, or to the extent otherwise determined by the Committee in its sole discretion and without any requirement that each Participant be treated consistently, upon the occurrence of a “Change in Control,” as defined in Section 9(b):
 
(i)           Any Option or Stock Appreciation Right that was not previously vested and exercisable as of the time of the Change in Control, shall become immediately vested and exercisable, subject to applicable restrictions set forth in Section 10(a) hereof.
 
(ii)           Any restrictions, deferral of settlement, and forfeiture conditions applicable to a Restricted Stock Award, Deferred Stock Award or an Other Stock-Based Award subject only to future service requirements granted under the Plan shall lapse and such Awards shall be deemed fully vested as of the time of the Change in Control, except to the extent of any waiver by the Participant and subject to applicable restrictions set forth in Section 10(a) hereof.
 
(iii)           With respect to any outstanding Award subject to achievement of performance goals and conditions under the Plan, the Committee may, in its discretion, deem such performance goals and conditions as having been met as of the date of the Change in Control.
 
(iv)           Notwithstanding the foregoing or any provision in any Award Agreement to the contrary, and unless the Committee otherwise determines in a specific instance, each outstanding Option, Stock Appreciation Right, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award shall not be accelerated as described in Sections 9(a)(i), (ii) and (iii), if either (A) the Company is the surviving entity in the Change in Control and the Option, Stock Appreciation Right, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award continues to be outstanding after the Change in Control on the substantially same terms and conditions as were applicable immediately prior to the Change in Control or (B) the successor company assumes or substitutes for the applicable Award.  For the purposes of this Section 9(a)(iv), an Option, Stock Appreciation Right, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award shall be considered assumed or substituted for if following the Change in Control the Award confers the right to purchase or receive, for each Share subject to the Option, Stock Appreciation Right, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award immediately prior to the Change in Control, on substantially the same vesting and other terms and conditions as were applicable to the Award immediately prior to the Change in Control, the consideration (whether stock, cash or other securities or property) received in the transaction constituting a Change in Control by holders of Shares for each Share held on the effective date of such transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares); provided, however, that if such consideration received in the transaction constituting a Change in Control is not solely common stock of the successor company or its parent or subsidiary, the Committee may, with the consent of the successor company or its parent or subsidiary, provide that the consideration to be received upon the exercise or vesting of an Option, Stock Appreciation Right, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award, for each Share subject thereto, will be solely common stock of the successor company or its parent or subsidiary substantially equal in fair market value to the per share consideration received by holders of Shares in the transaction constituting a Change in Control.  The determination of such substantial equality of value of consideration shall be made by the Committee in its sole discretion and its determination shall be conclusive and binding. Notwithstanding the foregoing, on such terms and conditions as may be set forth in an Award Agreement, in the event of a termination of a Participant’s employment in such successor company (other than for Cause) within 24 months following such Change in Control, each Award held by such Participant at the time of the Change in Control shall be accelerated as described in Sections 9(a)(i), (ii) and (iii) above.

 
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(b)            Definition of “Change in Control” .  Unless otherwise specified in any employment agreement between the Participant and the Company or any Related Entity, or in an Award Agreement, a “Change in Control” shall mean the occurrence of any of the following:
 
(i)           The acquisition by any Person of Beneficial Ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of either (A) the value of then outstanding equity securities of the Company (the “Outstanding Company Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities) (the foregoing Beneficial Ownership hereinafter being referred to as a "Controlling Interest"); provided, however, that for purposes of this Section 9(b), the following acquisitions shall not constitute or result in a Change in Control:  (v) any acquisition directly from the Company; (w) any acquisition by the Company; (x) any acquisition by any Person that as of the Effective Date owns Beneficial Ownership of a Controlling Interest; (y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Related Entity; or (z) any acquisition by any entity pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) below; or
 
(ii)           During any period of two (2) consecutive years (not including any period prior to the Effective Date) individuals who constitute the Board on the Effective Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

 
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(iii)           Consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Company or any of its Related Entities, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or equity of another entity by the Company or any of its Related Entities (each a “Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the Beneficial Owners, respectively, of the Outstanding Company Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the value of the then outstanding equity securities and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of members of the board of directors (or comparable governing body of an entity that does not have such a board), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan (or related trust) of the Company or such entity resulting from such Business Combination or any Person that as of the Effective Date owns Beneficial Ownership of a Controlling Interest) beneficially owns, directly or indirectly, fifty percent (50%) or more of the value of the then outstanding equity securities of the entity resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such entity except to the extent that such ownership existed prior to the Business Combination and (C) at least a majority of the members of the Board of Directors or other governing body of the entity resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or
 
(iv)           Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.
 
10.            General Provisions .
 
(a)            Compliance With Legal and Other Requirements .  The Company may, to the extent deemed necessary or advisable by the Committee, postpone the issuance or delivery of Shares or payment of other benefits under any Award until completion of such registration or qualification of such Shares or other required action under any federal or state law, rule or regulation, listing or other required action with respect to the Listing Market, or compliance with any other obligation of the Company, as the Committee, may consider appropriate, and may require any Participant to make such representations, furnish such information and comply with or be subject to such other conditions as it may consider appropriate in connection with the issuance or delivery of Shares or payment of other benefits in compliance with applicable laws, rules, and regulations, listing requirements, or other obligations.

 
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(b)            Limits on Transferability; Beneficiaries .  No Award or other right or interest granted under the Plan shall be pledged, hypothecated or otherwise encumbered or subject to any lien, obligation or liability of such Participant to any party, or assigned or transferred by such Participant otherwise than by will or the laws of descent and distribution or to a Beneficiary upon the death of a Participant, and such Awards or rights that may be exercisable shall be exercised during the lifetime of the Participant only by the Participant or his or her guardian or legal representative, except that Awards and other rights (other than Incentive Stock Options and Stock Appreciation Rights in tandem therewith) may be transferred to one or more Beneficiaries or other transferees during the lifetime of the Participant, and may be exercised by such transferees in accordance with the terms of such Award, but only if and to the extent such transfers are permitted by the Committee pursuant to the express terms of an Award Agreement (subject to any terms and conditions which the Committee may impose thereon).  A Beneficiary, transferee, or other person claiming any rights under the Plan from or through any Participant shall be subject to all terms and conditions of the Plan and any Award Agreement applicable to such Participant, except as otherwise determined by the Committee, and to any additional terms and conditions deemed necessary or appropriate by the Committee.
 
(c)            Adjustments.
 
(i)            Adjustments to Awards .  In the event that any extraordinary dividend or other distribution (whether in the form of cash, Shares, or other property), recapitalization, forward or reverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, share exchange, liquidation, dissolution or other similar corporate transaction or event affects the Shares and/or such other securities of the Company or any other issuer such that a substitution, exchange, or adjustment is determined by the Committee to be appropriate, then the Committee shall, in such manner as it may deem equitable, substitute, exchange or adjust any or all of (A) the number and kind of Shares which may be delivered in connection with Awards granted thereafter, (B) the number and kind of Shares by which annual per-person Award limitations are measured under Section 4 hereof, (C) the number and kind of Shares subject to or deliverable in respect of outstanding Awards, (D) the exercise price, grant price or purchase price relating to any Award and/or make provision for payment of cash or other property in respect of any outstanding Award, and (E) any other aspect of any Award that the Committee determines to be appropriate.
 
(ii)            Adjustments in Case of Certain Transactions .  In the event of any merger, consolidation or other reorganization in which the Company does not survive, or in the event of any Change in Control, any outstanding Awards may be dealt with in accordance with any of the following approaches, without the requirement of obtaining any consent or agreement of a Participant as such, as determined by the agreement effectuating the transaction or, if and to the extent not so determined, as determined by the Committee: (a) the continuation of the outstanding Awards by the Company, if the Company is a surviving entity, (b) the assumption or substitution for, as those terms are defined in Section 9(a)(iv) hereof, the outstanding Awards by the surviving entity or its parent or subsidiary, (c) full exercisability or vesting and accelerated expiration of the outstanding Awards, or (d) settlement of the value of the outstanding Awards in cash or cash equivalents or other property followed by cancellation of such Awards (which value, in the case of Options or Stock Appreciation Rights, shall be measured by the amount, if any, by which the Fair Market Value of a Share exceeds the exercise or grant price of the Option or Stock Appreciation Right as of the effective date of the transaction).  The Committee shall give written notice of any proposed transaction referred to in this Section 10(c)(ii) at a reasonable period of time prior to the closing date for such transaction (which notice may be given either before or after the approval of such transaction), in order that Participants may have a reasonable period of time prior to the closing date of such transaction within which to exercise any Awards that are then exercisable (including any Awards that may become exercisable upon the closing date of such transaction).  A Participant may condition his exercise of any Awards upon the consummation of the transaction.

 
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(iii)            Other Adjustments .  The Committee (and the Board if and only to the extent such authority is not required to be exercised by the Committee to comply with Section 162(m) of the Code) is authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards (including Performance Awards, or performance goals and conditions relating thereto) in recognition of unusual or nonrecurring events (including, without limitation, acquisitions and dispositions of businesses and assets) affecting the Company, any Related Entity or any business unit, or the financial statements of the Company or any Related Entity, or in response to changes in applicable laws, regulations, accounting principles, tax rates and regulations or business conditions or in view of the Committee's assessment of the business strategy of the Company, any Related Entity or business unit thereof, performance of comparable organizations, economic and business conditions, personal performance of a Participant, and any other circumstances deemed relevant.
 
(d)            Taxes .  The Company and any Related Entity are authorized to withhold from any Award granted, any payment relating to an Award under the Plan, including from a distribution of Shares, or any payroll or other payment to a Participant, amounts of withholding and other taxes due or potentially payable in connection with any transaction involving an Award, and to take such other action as the Committee may deem advisable to enable the Company or any Related Entity and Participants to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any Award.  This authority shall include authority to withhold or receive Shares or other property and to make cash payments in respect thereof in satisfaction of a Participant's tax obligations, either on a mandatory or elective basis in the discretion of the Committee.
 
(e)            Changes to the Plan and Awards .  The Board may amend, alter, suspend, discontinue or terminate the Plan, or the Committee's authority to grant Awards under the Plan, without the consent of shareholders or Participants, except that any amendment or alteration to the Plan shall be subject to the approval of the Company's shareholders not later than the annual meeting next following such Board action if such shareholder approval is required by any federal or state law or regulation (including, without limitation, Rule 16b-3 or Code Section 162(m)) or the rules of the Listing Market, and the Board may otherwise, in its discretion, determine to submit other such changes to the Plan to shareholders for approval; provided that, except as otherwise permitted by the Plan or Award Agreement, without the consent of an affected Participant, no such Board action may materially and adversely affect the rights of such Participant under the terms of any previously granted and outstanding Award.  The Committee may waive any conditions or rights under, or amend, alter, suspend, discontinue or terminate any Award theretofore granted and any Award Agreement relating thereto, except as otherwise provided in the Plan; provided that, except as otherwise permitted by the Plan or Award Agreement, without the consent of an affected Participant, no such Committee or the Board action may materially and adversely affect the rights of such Participant under terms of such Award.  Notwithstanding anything to the contrary, the Committee shall be authorized to amend any outstanding Option and/or Stock Appreciation Right to reduce the exercise price or grant price without the prior approval of the shareholders of the Company.  In addition, the Committee shall be authorized to cancel outstanding Options and/or Stock Appreciation Rights replaced with Awards having a lower exercise price without the prior approval of the shareholders of the Company.

 
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(f)            Limitation on Rights Conferred Under Plan .  Neither the Plan nor any action taken hereunder or under any Award shall be construed as (i) giving any Eligible Person or Participant the right to continue as an Eligible Person or Participant or in the employ or service of the Company or a Related Entity; (ii) interfering in any way with the right of the Company or a Related Entity to terminate any Eligible Person's or Participant's Continuous Service at any time, (iii) giving an Eligible Person or Participant any claim to be granted any Award under the Plan or to be treated uniformly with other Participants and Employees, or (iv) conferring on a Participant any of the rights of a shareholder of the Company including, without limitation, any right to receive dividends or distributions, any right to vote or act by written consent, any right to attend meetings of shareholders or any right to receive any information concerning the Company’s business, financial condition, results of operation or prospects, unless and until such time as the Participant is duly issued Shares on the stock books of the Company in accordance with the terms of an Award.  None of the Company, its officers or its directors shall have any fiduciary obligation to the Participant with respect to any Awards unless and until the Participant is duly issued Shares pursuant to the Award on the stock books of the Company in accordance with the terms of an Award.  Neither the Company nor any of the Company’s officers, directors, representatives or agents is granting any rights under the Plan to the Participant whatsoever, oral or written, express or implied, other than those rights expressly set forth in this Plan or the Award Agreement.
 
(g)            Unfunded Status of Awards; Creation of Trusts .  The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation.  With respect to any payments not yet made to a Participant or obligation to deliver Shares pursuant to an Award, nothing contained in the Plan or any Award shall give any such Participant any rights that are greater than those of a general creditor of the Company; provided that the Committee may authorize the creation of trusts and deposit therein cash, Shares, other Awards or other property, or make other arrangements to meet the Company's obligations under the Plan.  Such trusts or other arrangements shall be consistent with the “unfunded” status of the Plan unless the Committee otherwise determines with the consent of each affected Participant.  The trustee of such trusts may be authorized to dispose of trust assets and reinvest the proceeds in alternative investments, subject to such terms and conditions as the Committee may specify and in accordance with applicable law.
 
(h)            Nonexclusivity of the Plan .  Neither the adoption of the Plan by the Board nor its submission to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board or a committee thereof to adopt such other incentive arrangements as it may deem desirable including incentive arrangements and awards which do not qualify under Section 162(m) of the Code.
 
(i)            Payments in the Event of Forfeitures; Fractional Shares .  Unless otherwise determined by the Committee, in the event of a forfeiture of an Award with respect to which a Participant paid cash or other consideration, the Participant shall be repaid the amount of such cash or other consideration.  No fractional Shares shall be issued or delivered pursuant to the Plan or any Award.  The Committee shall determine whether cash, other Awards or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.

 
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(j)            Governing Law .  The validity, construction and effect of the Plan, any rules and regulations under the Plan, and any Award Agreement shall be determined in accordance with the laws of the State of Georgia without giving effect to principles of conflict of laws, and applicable federal law.
 
(k)            Non-U.S. Laws .  The Committee shall have the authority to adopt such modifications, procedures, and subplans as may be necessary or desirable to comply with provisions of the laws of foreign countries in which the Company or its Related Entities may operate to assure the viability of the benefits from Awards granted to Participants performing services in such countries and to meet the objectives of the Plan.
 
(l)            Plan Effective Date and Shareholder Approval; Termination of Plan .  The Plan shall become effective on the Effective Date, subject to subsequent approval, within 12 months of its adoption by the Board, by shareholders of the Company eligible to vote in the election of directors, by a vote sufficient to meet the requirements of Code Sections 162(m) (if applicable) and 422, Rule 16b-3 under the Exchange Act (if applicable), applicable  requirements under the rules of any stock exchange or automated quotation system on which the Shares may be listed or quoted, and other laws, regulations, and obligations of the Company applicable to the Plan.  Awards may be granted subject to shareholder approval, but may not be exercised or otherwise settled in the event the shareholder approval is not obtained.  The Plan shall terminate at the earliest of (a) such time as no Shares remain available for issuance under the Plan, (b) termination of this Plan by the Board, or (c) the tenth anniversary of the Effective Date.  Awards outstanding upon expiration of the Plan shall remain in effect until they have been exercised or terminated, or have expired.

 
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EMPLOYMENT AGREEMENT


THIS EMPLOYMENT AGREEMENT (“Agreement”) made and entered into on this 1st day of April, 2008 (the "Effective Date"), by and between Vystar Corporation, a Georgia corporation (the "Company"), and Sandra Parker, a resident of the State of Georgia ("Employee").

In consideration of the employment by the Company and of the compensation and other remuneration paid, and to be paid, by the Company and received by Employee for such employment, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by Employee, it is agreed by and between the parties hereto as follows:

1.   Definitions. For purposes of this Agreement, the following terms shall have the meanings specified below:

" Business " - the research, development, manufacturing, marketing, sales, distribution and offering of products and services related to low-protein natural rubber latex raw materials and products offered by the Company as of the Effective Date and as may be offered by Company during the term of this Agreement .
 
“Competitor” - means any Person (as defined herein) offering products or services in competition with Company or any of its subsidiaries, specifically any Person offering or involved in the research, development, manufacturing, marketing, selling and/or distribution of any low-protein natural rubber latex raw material or product .
 
" Confidential Information " - information relating to the operations, customers, or finances of the Company, or the Business, that derives value from not being generally known to other Persons, including, but not limited to, technical or nontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, and lists of or identifying information about actual or potential customers or suppliers, including all customer lists, whether or not reduced to writing, certain patented and unpatented information relating to the research and development, manufacture or serving of the Company's products, information concerning proposed new products, market feasibility studies and proposed or existing marketing techniques or plans, and all information defined as a “Trade Secret” pursuant to the Georgia Trade Secrets Act or otherwise by Georgia law. Confidential Information also includes the same types of information relating to the operations, customers, finances, or Business of any affiliate of the Company, if such information is learned by Employee during the term of this Agreement or in connection with Employee's performance of Services. Con-fidential Information also includes information disclosed to the Company by third parties that the Company is obligated to maintain as confiden-tial. Confidential Information may include information that is not a Trade Secret, but Confiden-tial Information that is not also a Trade Secret shall constitute Confidential Information only for five (5) years after the Termination Date. Confidential Information does not include information generally available to the public through no violation of a confidentiality or non-disclosure obligation owed to Company;
 
 
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" Customer " - any customer of the Company in the Territory that Employee, during the term of this Agreement, (i) provided goods or services to or solicited on behalf of the Company; or (ii) about whom Employee possesses Confidential Information;

" Person " - any individual, corporation, partnership, limited liability company, association, municipality, government agency, government, unin-corporated organization or other entity;

" Services " - the duties and functions that Employee shall provide in the Territory as an employee of the Company and as further outlined on Exhibit B;

" Termination Date " - the last day Employee is employed by the Com-pany, whether the termination is voluntary or involuntary and whether with or without cause;

“Territory” - shall be the geographic region in which Employee initially and/or at anytime throughout the term of this Agreement provides the Services. Territory shall be more fully described in Exhibit B along with Employee’s description of Services.

2.   Employment: The Company agrees to employ Employee and Employee agrees that Employee will devote Employee’s full productive time, skill, energy, knowledge and best efforts during the period of Employee’s employment to such duties as the Board of Directors of the Company and/or the Employee’s Direct Supervisor (as identified in Section 5 below) may reasonably assign to Employee, and Employee will faithfully and diligently endeavor to the best of Employee’s ability to further the best interest of the Company during the period of Employee’s employment. However, Employee is not prohibited from making personal investments in any other businesses, as long as those investments do not require Employee to participate in the operation of the companies in which Employee invests and such other businesses are not in competition with the Company or any of its subsidiaries (“Competitor”). Employee may invest in any publicly traded company registered on a bona fide stock exchange without reservation.

3.   Terms of Employment: Employee's employment will begin on the _______ day of ___________, 20__, and will continue unless one party gives the other party of such intent to not renew ninety (90) days prior to each annual anniversary date, unless earlier terminated in accordance with Section 9 herein. Notwithstanding, the foregoing, the first 180 days of Employee’s employment shall be a probationary period during which Company may terminate Employee without cause and without the obligation of the Severance Payment, as described in Section 10.c. Effect of Termination (“Probationary Period”). Termination of this Agreement during the Probationary Period shall be effective upon written notice to Employee. At Company’s election, in the event of Company’s termination of Employee without cause during the Probationary Period, Company may elect to activate the Noncompete provisions. In the event of Company’s termination of Employee for cause, whether in the Probationary Period or otherwise, Employee shall be obligated to comply with the Noncompete covenants.

4.   Compensation: On the terms and subject to the conditions of this Agreement, (i) the Company will pay Employee a salary and a bonus determined in accordance with Schedule A, (ii) Employee will be entitled to participate in the Company’s Employee Stock Option Plan as may be in effect from time to time, and (iii) the Company will provide Employee with employee benefits consistent with those provided by the Company to similarly situated executives. The Company’s Employee Stock Option Plan will be distributed to Employee. The employee benefits provided by the Company as of the date hereof shall also be distributed to Employee. The Company reserves the sole and unilateral right to modify any and all employee benefits at any time in its sole discretion.
 
 
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5.   Title, Duties and Conduct of Employee: The Employee’s initial title shall be Executive Vice President Sales and Marketing, and shall report to William R. Doyle, President & COO, as Employee’s Direct Supervisor. Employee shall perform such duties and functions for the Company as shall be specified from time to time by the Chairman or Board of Directors of the Company, and/or the Employee’s Direct Supervisor, including, but not limited to the duties and functions expressly set forth on Schedule B, and which are consistent with Employee's duties set forth on Schedule B (“Services”).

a.   Disparagement. Employee shall not at any time make false, misleading or disparaging statements about the Company, including the Business, management, employees and/or Customers.

b.   Prior Agreements. Employee represents and warrants that Employee is not under any obligation, contractual or otherwise, limiting, impairing or affecting Employee's performance of Services. Upon execution of this Agreement, Employee shall give the Company any agreement with a prior employer or other Person purporting to limit or affect, in any way, Employee's ability to work for the Company, to solicit customers or potential customers or employees or to use any type of information.

c.   Confidential Information. Employee shall protect Confidential Information. Except as required in connection with work for the Company, Employee will not use, disclose or give to others, during or after Employee's employment, any Confidential Information.

d.   Compliance with Company Policies and Laws. At all times while performing Services, Employee shall comply with all laws and regulations applicable to Employee and/or Company. Employee shall at all times comply with all Company policies and procedures. Failure to comply with this Section shall be grounds for Termination For Cause, as described in Section 10 Term and Termination.

6.   Paid Time Off, Illness or Incapacity: Employee is entitled to vacation paid time off and absence from Employee’s duties during regular work hours for a total of four (4) weeks each calendar year. Employee shall be entitled to paid time off for sick leave pursuant to Company policy. If Employee cannot perform his/her duties because of major illness or incapacity for more than a total of ninety (90) days in any year, the Company may terminate this Agreement upon thirty (30) days' written notice to Employee. Employee is not entitled to receive, and the Company shall not be required to pay, Employee's compensation hereunder for absences because of major illness or incapacity other than the total of ninety (90) days in each year granted to Employee under this Section 6.
 
 
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7.   Termination of Agreement Upon Sale or Termination of Company's Business:  

a.   Not--with-standing anything to the contrary contained in this Agreement, the Company may terminate Employee's employment upon thirty (30) days' written notice to Employee upon the occurrence of any of the following events:

(1) The acquisition, directly or indirectly, of any "person" (excluding any "person" who on the date hereof owns or controls ten percent (10%) or more of the voting power of the Company's common stock), as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, within any twelve (12) month period of securities of the Company representing an aggregate of fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; provided, that for purposes of this Paragraph (a), "acquisition" shall not include shares which are received by a person through gift, inheritance, under a will or otherwise through the laws of descent and distribution;

(2)   During any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board"), cease for any reason to constitute at least a majority thereof, unless the election of each new director was approved in advance by a vote of at least a majority of the directors then still in office who were directors at the beginning of such period; or

(3) The occurrence of any other event or circumstance which is not covered by (1) or (2) above which the Board determines affects control of the Company and, in order to implement the purposes of this Agreement, adopts a resolution that such event or circumstance constitutes an “event” under this Paragraph 7.


b.   If the Company terminates Employee pursuant to Paragraph 7(a), Company will, for the Severance Period (as defined in Paragraph 10(c)), pay Employee her then current salary and provide Employee with Group Health Insurance, but Company shall not be required to pay any other compensation or provide any other benefits.

8.   Ownership of Information

a.   Work For Hire Acknowledgment; Assignment. All writings, draw-ings, photographs, tapes, recordings, computer programs and other works in any tangible medium of expression, regardless of the form of medium, which have been or are prepared by Employee, or to which Employee contributes, in connection with Employee's employ-ment by the Company, whether patented, copyrighted, trademarked or otherwise (collectively the "Works") and all copyrights, patents, trademarks and other rights in and to the Works, belong solely, irrevocably and exclusively throughout the world to the Company as works made for hire. However, to the extent any court or agency should conclude that the Works (or any of them) do not constitute or qualify as a "work made for hire," Employee hereby assigns, grants and delivers, solely, irrevocably, exclusively and throughout the world to the Company all ownership and other rights to the Works. Employee also agrees to cooperate with the Company and to execute such other further grants and assignments of all rights as the Company from time to time reasonably may request for the purpose of evidencing, enforcing, filing, registering or defending its ownership of the Works and the copyrights in them, and Employee hereby irrevoca-bly constitutes and appoints the Company as Employee's agent and attorney-in-fact, with full power of substitu-tion, in Employee's name, place and stead, to execute and deliver any and all such assignments or other instruments which Employee shall fail or refuse promptly to execute and deliver, this power and agency being coupled with an interest and being irrevo-cable. Without limiting the preceding provisions of this Paragraph 8(a), Employee agrees that the Company may edit and otherwise modify, and use, publish and otherwise exploit, the Works in all media and in such manner as the Company, in its discretion, may determine.
 
 
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b.   Inventions, Ideas and Patents. Employee shall disclose promptly to the Company (which shall receive it in confidence), and only to the Company, any invention or idea of Employee (developed alone or with others) conceived or made during Employee's employment by the Company (or, if related to the Business, during employment or within one year after the Termination Date). Employee assigns to the Company any such invention or idea in any way connected with Employee's employment or related to the Business, research or development of the Company, or demonstrably anticipated research or development of the Company, and will cooperate with the Company and sign all papers deemed necessary by the Company to enable it to obtain, maintain, protect and defend patents covering such inventions and ideas and to confirm the exclusive ownership of the Company of all rights in such inventions, ideas and patents, and irrevoca-bly appoints the Company as its agent to execute and deliver any assignments or documents Employee fails or refuses to execute and deliver promptly, this power and agency being coupled with an interest and being irrevocable. This constitutes written notification to Employee that this assignment does not apply to an invention for which no equipment, supplies, facility or Trade Secret information of the Company or any Customer was used and which was developed entirely on Employee's own time, unless (a) the invention relates (i) directly to the Business or (ii) to the actual or demonstrably anticipated research or develop-ment of the Company, or (b) the invention results from any work performed by Employee for the Company.

9.   Nonsolicitation; Noncompetition .  

a.   Non-Solicitation of Customers. During the term of this Agreement, and for one (1) year after the Termination Date, Employee will not solicit Customers within the Territory for the purpose of providing products or services comparable to those provided by the Business, except on behalf of the Company.

b.   Non-Solicitation of Company Employees. During the term of this Agreement and for one (1) year after the Termination Date, Employee will not solicit for employment with another Person anyone who is an employee of the Company.

c.   Non-Compete. During the term of this Agreement and for one (1) year after the Termination Date, Employee will not provide services substantially similar to Services within the Territory to any Competitor. Employee shall be prohibited from providing in the Territory in competition with the Company in accordance with the terms of this Agreement, including the Services expressly set forth on Schedule B attached hereto. Employee acknowledges that Employee has been informed of and discussed with the Company the specific activities that Employee will perform as Services and that Employee understands the scope of the activities that constitute Services and the Territory under this Agreement.
 
 
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d.   Future Employment Opportunities. Prior to and for one (1) year after the Termination Date, Employee shall (a) provide any employer with a copy of this Agreement, and (b) upon accepting any position, provide the Company with the employer's name and a description of the services, if any, Employee will provide for such employer.


10.   Termination . At all times, Employee’s employment shall be subject to “employment at will”. This Agreement and the employment of Employee may be terminated as follows:

a.   Without Cause . Either party may terminate this Agreement upon thirty (30) days notice to the other party.

b.   For Cause.
(1)   By the Company (i) pursuant to Paragraphs 6 or 7, (ii) upon conviction of the Employee of any felony or material misdemeanor under federal, state or local laws or ordinances, except traffic violations (iii) upon the failure of Employee to diligently or competently discharge the duties assigned to him pursuant to this Agreement; or

(2)   (i) By Employee upon thirty (30) days' written notice to the Company for any breach of this Agreement by Company and failure to cure within that thirty (30) day notice period; or

(3)   By the Company upon any breach by Employee of any of the terms and conditions of this Agreement or the breach by Employee of any representation or warranty made to the Company herein or in any other agreement, document or instrument executed by Employee and delivered to the Company, or should any representation or warranty made by Employee hereunder or thereunder prove to have been false or misleading in any material respect when made or furnished; or

(4)   By the Company upon the death of Employee.

c.   Effect of Termination.

(1)   In the event Employee is terminated by the Company without cause (other than during the Probationary Period pursuant to Paragraph 3 the Company shall (i) pay Employee his then current salary and provide Employee with Group Health Insurance, but no other compensation or benefits, for three (3) months (“Severance Period”) beginning with the date of termination (“Severance Payment”). If Employee is terminated for cause or Employee terminates this Agreement without cause, Employee shall be entitled only to compensation accrued through the date of Termination and all benefits accrued as of such date, and shall not be entitled to any Severance Payment described herein, but shall remain obligated to the Non-Compete and Non-Severance obligations.
 
 
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(2) Return of Materials. On the Termination Date or for any reason or at any time at the Company's request, Employee will deliver promptly to the Company all materials, documents, plans, records, notes, manuals, subcontracts, procedures, customer lists, and any other papers and any copies thereof in Em-ployee's possession, custody or control relating to the Company or the Business, whether defined as Confidential Information, Trade Secret or otherwise, all of which at all times shall be the property of the Company.

11.   Miscellaneous .  

a.   Assignability.  

(1) This Agreement may be assigned by the Company to any successor in interest to its business, which successor in interest shall be bound herein to the same extent as the Company. Employee agrees to perform his duties for such successor in interest to the same extent as for the Company.

(2) This is a personal agreement on the part of Employee and may not be sold, assigned, transferred or conveyed by Employee.

b.   No Waiver . The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by the other party.

c. Governing Law and Jurisdiction . This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. Any cause of action shall be filed in and the parties agree to subject themselves to the jurisdiction of any State or Federal court of competent jurisdiction located in Atlanta, Georgia.

d. Entire Agreement . This Agreement, together with the Employee confidential Information, Copyright and Invention Assignment Agreement, attached hereto as Exhibit C, states the entire agreement and understanding between the parties and supersedes all prior understandings and agreements.

e. No Modification . No change or modification to this Agreement shall be valid unless in writing and signed by both parties hereto.

f.   Independence of Covenants . The covenants contained herein shall be construed as agreements independent of each other and of any other provision of this or any other contract between the parties hereto, and the existence of any claim or cause of action by Employee against the Company, whether predicated upon this or any other contract, shall not constitute a defense to the enforcement by the Company of said covenants.

 
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g . Right to Injunctive Relief . Employee recognizes and agrees that the injury the Company will suffer in the event of the Employee's breach of any covenant or agreement contained herein cannot be compensated by monetary damages alone, and Employee therefore agrees that the Company, in addition and without limiting any other remedies or rights that it may have, either under his Agreement or otherwise, shall have the right to obtain an injunction against Employee from any court of competent jurisdiction enjoining any such breach without having to show or prove damages or injury.

h. Jury Trial Waiver . Both parties hereby waive their right to a trial by jury in the event of any dispute or cause of action regarding this Agreement.
 
 
 
 
 
 
 
 
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IN WITNESS WHEREOF , the undersigned have executed this Agreement as of the day and year first above written.
     
 
VYSTAR CORPORATION
 
 
 
 
 
 
  By:    
 
Name: William R. Doyle
 
Title: CEO
     
 
EMPLOYEE:
 
 
 
 
 
 
           
 
Name: Sandra Parker
   



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Schedule A - Salary and Bonus
Annual Salary. $95,000*

Salary. Company shall pay Employee a Monthly Salary of $7,916.00* The Monthly Salary shall be payable bi-weekly according to the Company’s established payroll periods.

* The salary may be adjusted upon the introduction of a mutually agreed-upon commission and/or bonus structure.

Bonus. For the first six (6) months of Employee’s employment, Employee shall receive in addition to her Salary a guaranteed bonus of Five Thousand Dollars ($5,000) per month, which shall be divided equally among the scheduled payroll periods for each month, and payable as part of the standard, scheduled payroll for each month. Thereafter, a further bonus structure may be made available to Employee depending upon the Company and Employee performance, at Company’s complete and sole discretion. Such bonus structure may alter the base and/or commission compensation described herein.

Commission . It is anticipated by both parties that a commission structure will be mutually agreed upon at some point during the term of this Agreement. Such commission structure may alter the base salary and/or bonus compensation described herein.

Stock Option Grant. Employee shall be granted 200,000 stock options at the strike price of $1/share pursuant to Company’s current 2004 Long-Term Incentive Compensation Plan, which shall vest according to the following schedule:

50,000 vesting upon the execution of this Agreement and the execution of the corresponding Stock Option Agreement effecting the stock option grant.

50,000 vesting each of the next 3 years upon the anniversary date of the execution of the Stock Option Agreement.

Employee may be awarded additional option grants at the Company’s and/or her Supervisor’s sole discretion. In all cases, the execution of a Stock Option Agreement shall be required in order to effect any such grant.

 

 
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Schedule B - Duties and Functions (“Services”)

Employee shall be responsible for implementing and overseeing, including all budgetary and revenue responsibility, for all Company sales and marketing activities and initiatives. The Territory for Employee’s scope of Services responsibility shall be the world-wide.




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Schedule C
Employee Confidential Information, Copyright and Invention Assignment Agreement
 
 
 
 
 
 
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