EXHIBIT 10.1
AMENDED AND RESTATED
EXCHANGE AGREEMENT
BETWEEN
MARKLAND TECHNOLOGIES, INC.
AND
SYQWEST, INC
______________________________
JULY 24, 2003
______________________________
THIS AMENDED AND RESTATED EXCHANGE AGREEMENT, dated as of July 24, 2003
(this "Agreement"), amends and restates that certain EXCHANGE AGREEMENT, dated
as of July 9, 2003, between MARKLAND TECHNOLOGIES, INC., a Florida corporation
(the "Company"), SYQWEST, INC., a Rhode Island corporation ("Vendor").
RECITALS
In connection with certain debts of the Company to Vendor incurred in
connection with services performed by Vendor, on behalf of Company between the
months of January 1, 2003 and July 5th, 2003, and evidenced by the Vendor's
invoices therefor (the "Indebtedness"), the Vendor is willing to be paid for
$450,000 of such amounts in the form of shares of the common stock, $.0001 par
value per share, of the Company ("Shares"), which are "restricted securities" as
defined under the Securities Act of 1933, and to be valued by agreement of the
parties at $.01 per share, all on the terms and conditions hereinafter set
forth.
AGREEMENT
IN CONSIDERATION of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
CERTAIN DEFINITIONS
SECTION 1 Certain Definitions. As used in this Agreement, unless the
context requires a different meaning, the following terms have the meanings
indicated in this Section 1
"Affiliate" means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control with")
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a U.S. federal legal holiday or a day on which banking institutions in
the State of Connecticut are authorized or required by law or other government
actions to close.
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"Closing" shall have the meaning set forth in Section Section 12.2.
"Closing Date" shall have the meaning set forth in Section Section
12.2.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's common stock, par value $0.0001 per
share.
"Company" shall have the meaning set forth in the preamble hereto.
"Disclosure Materials" means, collectively, the SEC Documents and the
Schedules to this Agreement and all other information furnished by or on behalf
of the Company, relating to or concerning the Company, to the Vendors or its
agents and counsel in connection with the transactions contemplated by this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
including the rules promulgated thereunder.
"Indebtedness" shall have the meaning set forth in the recitals hereto.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
right of first refusal, charge, security interest or encumbrance of any kind in
or on such asset or the revenues or income thereon or therefrom.
"Material Adverse Effect" shall have the meaning set forth in Section
Section 13.1.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind
"Required Approvals" shall have the meaning set forth in Section 3.6.
"SEC Documents" means the Company's reports, schedules, forms and proxy
statements filed with the Commission under the Securities Act and the Exchange
Act.
"Securities Act" means the Securities Act of 1933, as amended,
including the rules promulgated thereunder.
"Shares" shall have the meaning stated set forth in the recitals
hereto.
"Subsidiaries" shall have the meaning set forth in Section 1Section 3.
"Vendor" shall have the meaning set forth in the preamble hereof.
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SECTION 2 Exchange; Closing.
2.1. Subject to the terms and conditions set forth in this
Agreement, in exchange for release of the Indebtedness of the
Company to Vendor, the Company shall issue and sell, and the
Vendor agrees to receive, forty-five million (45,000,000)
Shares.
2.2. The closing of the exchange of the Shares (the "Closing")
shall take place at 5:00 PM, local time, on or prior to July
9, 2003, at the offices of Company. The date of the Closing is
hereinafter referred to as the "Closing Date."
2.3. At the Closing, (i) the Company shall deliver or cause to be
delivered to the Vendor certificates representing 45,000,000
Shares to the Vendor; (ii) the Vendor shall deliver or cause
to be delivered to the Company written evidence of discharge
or cancellation of the Indebtedness, and (iii) each party
hereto shall deliver or cause to be delivered all other
executed instruments, agreements and certificates as are
required to be delivered by or on its behalf at the Closing.
REPRESENTATIONS AND WARRANTIES
SECTION 3 Representations and Warranties of the Company. The Company hereby
represents and warrants to the Vendor as follows:
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3.1. Organization and Qualification. The Company is a corporation,
duly incorporated, validly existing and in good standing under
the laws of the State of Florida, with the requisite corporate
power and authority to own and use its properties and assets
and to carry on its business as currently conducted. The
Company has no active subsidiaries other than as set forth in
the SEC Documents (collectively, the "Subsidiaries"). Each of
the Subsidiaries is a corporation, duly incorporated, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation, with the requisite
corporate power and authority to own and use its properties
and assets and to carry on its business as currently
conducted, except where the failure to have such power and
authority would not, individually or in the aggregate, (x)
adversely affect the legality, validity or enforceability of
the Shares or this Agreement, (y) have a material adverse
effect on the results of operations, assets, prospects, or
condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (z) adversely impair the
Company's ability to perform fully on a timely basis its
obligations under this Agreement (a "Material Adverse
Effect"). Each of the Company and the Subsidiaries is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the nature of the
business conducted or property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, would not,
individually or in the aggregate, have or result in a Material
Adverse Effect.
3.2. Authorization; Enforcement. THE COMPANY HAS THE REQUISITE
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT and to
otherwise carry out its obligations thereunder. The execution
and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated thereby
have been duly authorized by all necessary action on the part
of the Company. This Agreement has been duly executed by the
Company and, when delivered in accordance with the terms
hereof, shall constitute the legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, liquidation or similar
laws relating to, or affecting generally the enforcement of,
creditors' rights and remedies or by other equitable
principles of general application. Neither the Company nor any
Subsidiary is in violation of any provision of its respective
certificate or articles of incorporation, bylaws or other
charter documents.
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3.3. Capitalization. The authorized, issued and outstanding capital
stock of the Company is set forth in the SEC Documents. No
shares of Common Stock are entitled to preemptive or similar
rights. Except as specifically disclosed in the SEC Documents,
there are no outstanding options, warrants, rights to
subscribe to, calls or commitments of any character whatsoever
relating to, or, except as a result of the purchase and sale
of the Shares, securities, rights or obligations convertible
into or exchangeable for, or giving any Person any right to
subscribe for or acquire, any shares of Common Stock, or
contracts, commitments, understandings, or arrangements by
which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock or securities or
rights convertible or exchangeable into shares of Common
Stock.
3.4. Issuance of Securities. The Shares are duly authorized and,
when issued in accordance with the terms hereof, shall be
validly issued, fully paid and nonassessable, free and clear
of all Liens.
3.5. No Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company
of the transactions contemplated thereby do not and will not
(i) conflict with or violate any provision of its certificate
of incorporation, bylaws or other charter documents (each as
amended through the date hereof), (ii) subject to obtaining
the Required Approvals referred to in Section 3.6, conflict
with, or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or
instrument (evidencing a Company debt or otherwise) to which
the Company is a party or by which any property or asset of
the Company is bound or affected, or (iii) result in a
violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or
governmental authority to which the Company is subject
(including federal and state securities laws and regulations),
or by which any property or asset of the Company is bound or
affected; except in the case of each of clauses (ii) and
(iii), as would not, individually or in the aggregate, have or
result in a Material Adverse Effect. The business of the
Company is not being conducted in violation of any law,
ordinance or regulation of any governmental authority, except
for violations which, individually and in the aggregate, would
not have or result in a Material Adverse Effect.
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3.6. Consents and Approvals. Neither the Company nor any Subsidiary
is required to obtain any consent, waiver, authorization or
order of, or make any filing or registration with, any court
or other federal, state, local, foreign or other governmental
authority or other Person in connection with the execution,
delivery and performance by the Company of this Agreement,
other than (i) the filing of form 8K with the SEC, and (ii)
other than, in all other cases, where the failure to obtain
such consent, waiver, authorization or order, or to give or
make such notice or filing, would not, individually or in the
aggregate, have or result in a Material Adverse Effect (the
"Required Approvals").
3.7. Litigation; Proceedings. Except as specifically disclosed in
the Disclosure Materials, there is no action, suit, notice of
violation, proceeding or investigation pending or, to the best
knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries or any of their respective
properties before or by any court, governmental or
administrative agency or regulatory authority (federal, state,
county, local or foreign) which (i) adversely affects or
challenges the legality, validity or enforceability of the
Agreement or (ii) would, individually or in the aggregate,
have or result in a Material Adverse Effect.
3.8. Private Offering. Assuming the accuracy of the representations
and warranties of the Vendor, the offering, issuance or sale
of the Shares as contemplated hereunder are exempt from the
registration requirements of the Securities Act.
3.9. Certain Fees. No fees or commissions will be payable by the
Company to any broker, financial advisor, finder, investment
banker, placement agent, or bank with respect to the
transactions contemplated hereby. The Vendor shall have no
obligation with respect to such fees or with respect to any
claims made by or on behalf of other Persons for fees of a
type contemplated in this Section Section 13.9 that may be due
in connection with the transactions contemplated hereby. The
Company shall indemnify and hold harmless the Vendor, its
respective employees, officers, directors, agents, and
partners, and its respective Affiliates, from and against all
claims, losses, damages, costs (including attorney's fees) and
expenses suffered in respect of any such claimed or existing
fees, as and when incurred.
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3.10. SEC Documents; Financial Statements; No Adverse Change. The
Company has filed all reports required to be filed by it under
the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the three years preceding the date hereof (or
such shorter period as the Company was required by law to file
such material) on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC
Documents prior to the expiration of any such extension. As of
their respective dates, the SEC Documents complied in all
material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, and none of the SEC
Documents, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Company
included in the SEC Documents comply in all material respects
with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto. Such
financial statements have been prepared in accordance with
generally accepted accounting principles applied on a
consistent basis during the periods involved, except as may be
otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the
financial position of the Company as of and for the dates
thereof and the results of operations, retained earnings and
cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal year-end audit adjustments.
Since the date of the financial statements included in the
Company's Quarterly Report on Form 10-QSB for the period ended
March 31, 2003, as amended to the date hereof, (a) there has
been no event, occurrence or development that has had or that
could have or result in a Material Adverse Effect, (b) there
has been no material change in the Company's accounting
principles, practices or methods and (c) the Company has
conducted its business only in the ordinary course of such
business. The Company last filed audited financial statements
with the Commission in October 2002.
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3.11. Disclosure. All information relating to or concerning the
Company set forth in the Transaction Documents or the
Disclosure Materials (other than the SEC Documents) is true
and correct in all material respects and does not fail to
state any material fact necessary in order to make the
statements herein or therein, in light of the circumstances
under which they were made, not misleading. The Company
confirms that it has not provided to the Vendor or any of
their representatives, agents or counsel any information that
constitutes material non-public information. The Company is
not in possession of, nor has the Company or its agents
disclosed to Vendor, any material non-public information that
(a) if disclosed, would reasonably be expected to have a
materially adverse effect on the price of the Common Stock or
(b) according to applicable law, rule or regulation, should
have been disclosed publicly by the Company prior to the date
hereof but which has not been so disclosed. Each of the
Company, its officers, directors, employees and agents shall
in no event disclose non-public information to Vendor,
advisors to or representatives of Vendor, unless prior to
disclosure of such information, the Company identifies such
information as being non-public information and provides
Vendor, such advisors and representatives with the opportunity
in writing to accept or refuse to accept such non-public
information for review and the Vendor in writing agrees to
accept such non-public information. The Company may, as a
condition to disclosing any non-public information hereunder,
require each of Vendor's advisors and representatives to enter
into a confidentiality agreement in form and substance
reasonably satisfactory to the Company and Vendor.
SECTION 4 Representations and Warranties of the Vendor. The Vendor hereby
represents and warrants to the Company as follows:
4.1. Organization; Authority. The Vendor is an entity organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and
authority to enter into and to consummate the transactions
contemplated by this Agreement and to carry out its
obligations thereunder. This Agreement has been duly executed
by such Vendor and, when delivered by such Vendor in
accordance with the terms hereof, shall constitute the valid
and legally binding obligation of such Vendor, enforceable
against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights generally and to general
principles of equity.
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4.2. Investment Intent. Such Vendor is acquiring the Shares to be
acquired hereunder for its own account for investment purposes
only and not with a view to or for distributing or reselling
such Shares or any part thereof or interest therein, without
prejudice, however, to such Vendor's right, subject to the
provisions of this Agreement, at all times to sell or
otherwise dispose of all or any part of such Shares pursuant
to an effective registration statement under the Securities
Act and in compliance with applicable state securities laws or
under an exemption from such registration. The Vendor
acknowledges and agrees that the Shares are "restricted
securities" as defined in Rule 144 under the Securities Act
and may not be re-sold into the public markets except in
compliance with the holding period, manner of sale and other
requirements of such rule.
4.3. Vendor Status. At the time such Vendor was offered the Shares
to be acquired hereunder by such Vendor, it was, and at the
date hereof, it is, and at the Closing Date, it will be, an
"accredited investor" as defined in Rule 501(a) under the
Securities Act.
4.4. Experience of Vendor. Such Vendor, either alone or together
with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective
investment in the Shares, and has so evaluated the merits and
risks of such investment.
4.5. Ability of Vendor to Bear Risk of Investment. Such Vendor
acknowledges that an investment in the Shares is speculative
and involves a high degree of risk. Such Vendor is able to
bear the economic risk of an investment in the Shares to be
acquired hereunder by such Vendor, and, at the present time,
is able to afford a complete loss of such investment.
4.6. Reliance. Such Vendor understands and acknowledges that (i)
the Shares to be acquired by it hereunder are being offered
and sold to it without registration under the Securities Act
in a private placement that is exempt from the registration
provisions of the Securities Act and (ii) the availability of
such exemption, depends in part on, and the Company will rely
upon the accuracy and truthfulness of, the foregoing
representations and such Vendor hereby consents to such
reliance.
4.7. No General Solicitation. At no time was Vendor presented with
or solicited by or through any leaflet, public promotional
meeting, television advertisement or any other form of general
solicitation or advertising.
4.8. [intentionally deleted]
4.9. No Other Representations. Except as specifically set forth
herein, Vendor makes no representations or warranties with
respect to the Company of the securities being exchanged.
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SECTION 5 OTHER AGREEMENTS OF THE PARTIES
5.1. Transfer Restrictions. The Shares may only be disposed of
pursuant to an effective registration statement under the
Securities Act, or pursuant to an available exemption from, or
in a transaction not subject to, the registration requirements
thereof. In connection with any transfer of any Shares other
than pursuant to an effective registration statement or to the
Company, the Company may require the transferor thereof to
provide to the Company an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that
such transfer does not require registration under the
Securities Act. Notwithstanding the foregoing, the Company
hereby consents to (i) any transfer of Shares by the Vendor to
an Affiliate of the Vendor, or any transfers among any such
Affiliates, and (ii) any transfer by the Vendor to any
investment entity under common management with the Vendor,
provided in each case of clauses (i) and (ii) the transferee
certifies to the Company that it is an "accredited investor"
as defined in Rule 501(a) under the Securities Act. Any such
transferee shall have the rights of the Vendor under this
Agreement.
5.2. The Vendor agree to the imprinting, so long as is required by
this Section 5 of the following legend on the certificate
evidencing the Shares:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE, HAVE BEEN ISSUED
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS.
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5.3. Furnishing of Information. As long as the Vendor owns the
Shares, the Company covenants to timely file (or obtain
extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company
after the date hereof pursuant to Section 13(a) or 15(d) of
the Exchange Act. If at any time prior to the date on which
the Vendor may resell all of the Shares without volume
restrictions pursuant to Rule 144(k) promulgated under the
Securities Act (as determined by counsel to the Company
pursuant to a written opinion letter to such effect, addressed
and acceptable to the Company's transfer agent for the benefit
of and enforceable by the Vendor) the Company is not required
to file reports pursuant to such sections, it will prepare and
furnish to the Vendor and make publicly available in
accordance with Rule 144(c) promulgated under the Securities
Act annual and quarterly financial statements, together with a
discussion and analysis of such financial statements in form
and substance substantially similar to those that would
otherwise be required to be included in reports required by
Section 13(a) or 15(d) of the Exchange Act in the time period
that such filings would have been required to have been made
under the Exchange Act. The Company further covenants that it
will take such further action the Vendor may reasonably
request, all to the extent required from time to time to
enable the Vendor to sell the Shares without registration
under the Securities Act within the limitation of the
exemptions provided by Rule 144 promulgated under the
Securities Act, including the legal opinion referenced above
in this 5.1. Upon the request of the Vendor, the Company shall
deliver to the Vendor a written certification of a duly
authorized officer as to whether it has complied with such
requirements.
5.3 Company Right to Repurchase Shares. The Company shall have the
right at any time by written notice accompanied by payment in
full therefor in good funds to repurchase any or all of the
Shares then owned by the Vendor at the price per share of
$.01. Promptly upon receipt of such notice and payment, Vendor
shall deliver the certificate(s) for the Shares to the
principal executive office of the Company accompanied by a
duly executed stock power in form satisfactory to the Company.
SECTION 6 [intentionally deleted]
SECTION 7 [intentionally deleted]
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SECTION 8 Notice of Breaches. Each of the Company and the Vendor shall give
prompt written notice to the other of any breach by it of any representation,
warranty or other agreement contained in this Agreement, as well as any events
or occurrences arising after the date hereof, which would reasonably be likely
to cause any representation or warranty or other agreement of such party, as the
case may be, contained in the this Agreement to be incorrect or breached as of
such Closing Date. However, no disclosure by either party pursuant to this
Section 8 shall be deemed to cure any breach of any representation, warranty or
other agreement contained in this Agreement. Notwithstanding the generality of
the foregoing, the Company shall promptly notify the Vendor of any notice or
claim (written or oral) that it receives from any lender of the Company to the
effect that the consummation of the transactions contemplated by this Agreement
violates or would violate any written agreement or understanding between such
lender and the Company, and the Company shall promptly furnish by facsimile to
the Vendor a copy of any written statement in support of, allegedly in support
of, or relating to such claim or notice.
SECTION 9 [intentionally deleted]
SECTION 10 [intentionally deleted]
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SECTION 11 Indemnification. If (i) Vendor becomes involved in any capacity
in any action, proceeding or investigation brought by any stockholder of the
Company or third-party, in connection with or as a result of the consummation of
the transactions contemplated by this Agreement, or if any Vendor is impleaded
in any such action, proceeding or investigation by any Person, or (ii) Vendor
becomes involved in any capacity in any action, proceeding or investigation
brought by the Commission, any self-regulatory organization or other body having
jurisdiction, against or involving the Company or in connection with or as a
result of the consummation of the transactions contemplated by this Agreement,
or if Vendor is impleaded in any such action, proceeding or investigation by any
Person, then in any such case, the Company hereby agrees to indemnify, defend
and hold harmless the Vendor from and against and in respect of all losses,
claims, liabilities, damages or expenses (collectively "Losses") resulting from,
imposed upon or incurred by the Vendor, directly or indirectly, and reimburse
such Vendor for its reasonable legal and other expenses (including the cost of
any investigation and preparation) incurred in connection therewith, as such
expenses are incurred; provided, however, that this sentence shall not apply to
the extent that such Losses are caused by, result from or arise out of any
breach of this Agreement by the Vendor or any intentionally wrongful or grossly
negligent conduct by the Vendor. The indemnification and reimbursement
obligations of the Company under this Section shall be in addition to any
liability which the Company may otherwise have, shall extend upon the same terms
and conditions to any Affiliates of the Vendor who are actually named in such
action, proceeding or investigation, and partners, directors, agents, employees
and controlling persons (if any), as the case may be, of the Vendor and any such
Affiliate, and shall be binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of the Company, the Vendor, any such
Affiliate and any such Person. The Company also agrees that neither of the
Vendor nor any such Affiliate, partner, director, agent, employee or controlling
person of the Vendor shall have any liability to the Company or any Person
asserting claims on behalf of or in right of the Company in connection with or
as a result of the consummation of this Agreement, except as provided in or
contemplated by this Agreement.
SECTION 12 [intentionally deleted]
CONDITIONS
SECTION 13 Conditions Precedent.
13.1. Conditions Precedent to the Obligation of the Company to Issue
the Shares. The obligation of the Company to issue the Shares
hereunder to the Vendor is subject to the satisfaction or
waiver by the Company, at or before the Closing, of each of
the following conditions:
13.1.1. Accuracy of the Vendor's Representations and
Warranties. The representations and warranties of the
Vendor shall be true and correct in all material
respects as of the date when made and as of the
Closing Date, as though made on and as of such date;
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13.1.2. Performance by the Vendor. The Vendor shall have
performed, satisfied and complied in all material
respects with all covenants, agreements and
conditions required by this Agreement to be
performed, satisfied or complied with by it at or
prior to the Closing; and
13.1.3. No Prohibitions. The exchange, purchase of and
payment for the Shares to be issued to the Vendor
hereunder shall not be prohibited or enjoined
(temporarily or permanently) by any applicable law or
governmental regulation.
13.2. Conditions Precedent to the Obligation of the Vendor to cancel
the Indebtedness in exchange for Shares. The obligation of the
Vendor to cancel the Indebtedness in return for the Shares to
be acquired by it hereunder is subject to the satisfaction or
waiver by the Vendor, at or before the Closing, of each of the
following conditions:
13.2.1. Accuracy of the Company's Representations and
Warranties. The representations and warranties of the
Company set forth herein shall be true and correct in
all material respects as of the date when made and as
of the Closing Date as though made on and as of such
date;
13.2.2. Performance by the Company. The Company shall have
performed, satisfied and complied in all material
respects with all covenants, agreements and
conditions required by this Agreement to be
performed, satisfied or complied with by the Company
at or prior to the Closing;
13.2.3. No Prohibitions. The exchange, purchase of and
payment for the Shares to be issued to the Vendor
hereunder shall not be prohibited or enjoined
(temporarily or permanently) by any applicable law or
governmental regulation;
13.2.4. Adverse Changes. No event or series of events which,
individually or in the aggregate, would have or
result in a Material Adverse Effect shall have
occurred between the date hereof and the Closing;
13.2.5. No Suspensions of Trading in Common Stock. Trading in
the Common Stock shall not have been suspended from
trading on the Nasdaq OTC Bulletin Board at any time
between the date hereof and the Closing;
13.2.6. Listing of Common Stock. The Common Stock shall have
at all times between the date hereof and the Closing
Date been listed for trading on the Nasdaq OTC
Bulletin Board;
13.2.7. Required Approvals. All Required Approvals shall have
been obtained;
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SECTION 14 Termination.
14.1. Termination by Mutual Consent. This Agreement and the
transactions contemplated hereby may be terminated at any time
prior to Closing by the mutual consent of the Company and the
Vendor.
14.2. Termination by the Company or the Vendor. This Agreement and
the transactions contemplated hereby may be terminated prior
to Closing by either the Company or the Vendor, by giving
written notice of such termination to the other party, if:
14.2.1. there shall be in effect any statute, rule, law or
regulation that prohibits the consummation of the
Closing or the transactions contemplated by this
Agreement or if the consummation of this Agreement
would violate any non-appealable final judgment,
order, decree, ruling or injunction of any court of
or governmental authority having competent
jurisdiction; or
14.2.2. there shall have been an amendment to Regulation D
promulgated under the Securities Act or an
interpretive release promulgated or issued
thereunder, which, in the reasonable judgment of the
terminating party, is likely to have or result in a
Material Adverse Effect.
14.3. Termination by the Vendor. This Agreement and the transactions
contemplated hereby may be terminated prior to Closing by the
Vendor, by giving written notice of such termination to the
Company, if:
14.3.1. the Company has breached in any material respects any
representation, warranty, covenant or agreement
contained in this Agreement and such breach is not
cured within one (1) Business Day following receipt
by the Company of notice of such breach;
14.3.2. there has occurred an event or series of events
which, individually or in the aggregate, is likely to
have or result in a Material Adverse Effect which is
not disclosed in the Disclosure Materials;
14.3.3. trading in the Common Stock has been suspended on the
Nasdaq OTC Bulletin Board; or
14.3.4. the Closing has not occurred by July 10, 2003 (other
than through the fault of the Vendors).
MISCELLANEOUS
SECTION 15 Fees and Expenses. The Company shall pay all stamp and other
taxes and duties levied in connection with the issuance of the Shares. The
Vendor shall be responsible for its own tax liability that may arise as a result
of the investment hereunder or the transactions contemplated by this Agreement.
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SECTION 16 Entire Agreement; Amendments, Exhibits and Schedules. This
Agreement, together with the Exhibits and Schedules hereto, contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof, and supersede all prior agreements and understandings. The Exhibits and
Schedules to this Agreement are hereby incorporated herein and made a part
hereof for all purposes as if fully set forth herein.
SECTION 17 Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 5:00 p.m. (New
York City time) on a Business Day, (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section later than 5:00 p.m. (New
York City time) on any date and earlier than 11:59 p.m. (New York City time) on
such date, (iii) the Business Day scheduled for delivery, if sent by nationally
recognized overnight or other courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Company: Markland Technologies, Inc.
Markland Technologies, Inc.
#207
54 Danbury Road
Ridgefield, CT 06877
Attention: Ken Ducey, Jr.
Fax: 203-431-8309
If to Vendor:
Syqwest, Inc.
1164 Newport Avenue
Pawtucket, RI 02861-2108
or such other address as may be designated in writing hereafter, in the
same manner, by such Person.
SECTION 18 Amendments; Waivers. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an amendment,
by both the Company and the Vendor, or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter.
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SECTION 19 Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
SECTION 20 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns, including
any Persons to whom the Vendor transfers Shares.
SECTION 21 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and assigns and,
other than with respect to assignees under the immediately preceding Section, is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
SECTION 22 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Connecticut for
contracts to be wholly performed in such state and without giving effect to the
principles thereof regarding the conflict of laws. Each of the parties consents
to the exclusive jurisdiction of the federal courts whose districts encompass
the County of Connecticut or the state courts of the State of Connecticut
sitting in the County of Connecticut in connection with any dispute arising
under this Agreement, and hereby waives, to the maximum extent permitted by law,
any objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions.
SECTION 23 Jury Trial Waiver. The Company and Vendor hereby waive a trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other in respect of any matter arising out of or in
connection with this Agreement.
SECTION 24 Survival. The representations, warranties, agreements and
covenants contained in this Agreement shall survive the Closing.
SECTION 25 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement, and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
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SECTION 26 Publicity. The Company and the Vendor shall consult with each
other in issuing any press releases or otherwise making public statements with
respect to the transactions contemplated hereby and no party shall issue any
such press release or otherwise make any such public statement without the prior
written consent of the other party, which consent shall not be unreasonably
withheld or delayed, except that no prior consent shall be required if such
disclosure is required by law, in which such case the disclosing party shall
provide the other party with prior notice of such public statement.
Notwithstanding the foregoing, the Company shall not publicly disclose the name
of the Vendors without the prior written consent of the Vendor, except to the
extent required by law, in which case the Company shall provide the Vendor with
written notice of such public disclosure prior thereto, or promptly thereafter.
SECTION 27 Severability. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affected or impaired thereby and the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
SECTION 28 Remedies. Each of the parties to this Agreement acknowledges and
agrees that the other party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties hereto agrees
that the other party shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
this Agreement and the terms and provisions of this Agreement in any action
instituted in any court of the United States of America or any state thereof
having jurisdiction over the parties to this Agreement and the matter, in
addition to any other remedy to which they may be entitled, at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Exchange Agreement to be duly executed as of the date first indicated
above.
MARKLAND TECHNOLOGIES, INC.
Dated: ___________________
By:
-------------------------------
Name:
Title:
SYQWEST, INC.
Dated: ____________________
By:
-------------------------------
Name:
Title:
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