EXHIBIT 4.14
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "AGREEMENT") dated as of October 27, 2003
between Markland Technology, Inc. (including, as the context may require, its
subsidiaries, the "COMPANY"), a Florida corporation, and Ms. Jo-Ann Nichols (the
"EMPLOYEE"), a resident of Pawtucket, RI.
WHEREAS, the Company wishes to employ the Employee to render services
for the Company on the terms and conditions set forth in this Agreement, and the
Employee wishes to be retained and employed by the Company on such tennis and
conditions.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
set forth below and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT - The Company hereby employs the Employee, and the Employee
accepts such employment and agrees to perform services for the Company, upon the
terms and conditions set forth in this Agreement.
2. POSITION AND DUTIES/SERVICE WITH COMPANY - During the term of the
Employee's employment, the Employee agrees to perform such reasonable employment
duties as the Board of Directors or Chief Executive Officer of the Company shall
assign from time to time. Currently, the Employee's employment shall commence
with the title of Senior Accountant.
Performance of Duties - The Employee agrees to serve the Company
faithfully and to the best of their ability and to devote a reasonable amount of
time, attention and efforts to the business and affairs of the Company during
their employment by the Company. The Employee hereby confirms that they are
under no contractual commitments inconsistent with obligations set forth in this
Agreement and that during the term of this Agreement, they will not render or
perform services for any other corporation, firm, entity or person which are
inconsistent with the provisions of this Agreement. While employed by the
Company, the Employee may participate in reasonable professional, charitable,
and/or personal investment activities so long as such activities do not
interfere with the performance of their obligations under this Agreement.
3. COMPENSATION BASE SALARY - As compensation for services to be rendered
by the Employee under this Agreement, the Company shall pay to the Employee:
(a) a base salary of $3,750 per month, and also arrange for medical
and dental health insurance coverage for the employee in the state of Rhode
Island.
(b) INCENTIVE COMPENSATION - In addition to the base salary, the
Employee shall be eligible to participate in any bonus or incentive
compensation plans that may be established by the Board of Directors of the
Company from time to time applicable to the Employee.
(c) PARTICIPATION IN BENEFIT PLANS - The Company agrees to pay for
Employee's benefits during the employment period, including but not limited
to health insurance and disability insurance. Additionally, while employed
by the Company, the Employee shall also be eligible to participate in all
employee benefit plans or programs (including vacation time) of
the Company to the extent that the Employee meets the requirements for each
individual plan. The Company provides no assurance as to the adoption or
continuance of any particular employee benefit plan or program, and the
Employee's participation in any such plan or program shall be subject to
the provisions, rules and regulations applicable thereto.
(d) EXPENSES - The Company will pay or reimburse the Employee for all
reasonable and necessary out-of-pocket expenses incurred in the performance
of their duties under this Agreement, subject to the Company's normal
policies for expense verification.
(e) GRANT OF STOCK. The company agrees to grant to Employee, as of
date of this contract equity in the Company equivalent to $40,000. Such
stock shall be restricted, unregistered common stock of the Company.
Confidential Information - Except as permitted or directed by the Company's
Board of Directors or Chief Executive Officer, during the term of his employment
or at any time thereafter, the Employee shall not divulge, furnish or make
accessible to anyone or use in any way (other than in the ordinary course of the
business of the Company) any confidential or secret knowledge or information of
the Company that the Employee has acquired or become acquainted with or will
acquire or become acquainted with prior to the termination of the period of his
employment by the Company (including employment by the Company or any affiliated
companies prior to the date of this Agreement) whether developed by
himself/herself or by others, concerning any trade secrets, confidential or
secret designs, processes, formulae, plans, devices or material (whether or not
patented or patentable) directly or indirectly useful in any aspect of the
business of the Company, any customer or supplier lists of the Company, any
confidential or secret development or research work of the Company, or any other
confidential information or secret aspects of the business of the Company. The
Employee acknowledges that the above-described knowledge or information
constitutes a unique and valuable asset of the Company and represents a
substantial investment of time and expense by the Company, and that any
disclosure or other use of such knowledge or information other than for the sole
benefit of the Company would be wrongful and would cause irreparable harm to the
Company. Both during and after the term of his employment, the Employee will
refrain from any acts or omissions that would reduce the value of such knowledge
or information to the Company. The foregoing obligations of confidentiality
shall not apply to any knowledge or information that is now published or which
subsequently becomes generally publicly known in the form in which it was
obtained from the Company, other than as a direct or indirect result of the
breach of this Agreement by the Employee.
4. VENTURES - If, during the term of his employment the Employee is engaged
in or associated with the planning or implementing of any project, program or
venture involving the Company and a third party or parties, all rights in such
project, program or venture shall belong to the Company. Except as approved by
the Company's Board of Directors or Chief Executive Officer, the Employee shall
not be entitled to any interest in such project, program or venture or to any
commission, finder's fee or other compensation in connection therewith other
than the compensation to be paid to the Employee as provided in this Agreement.
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5. TERMINATION OF EMPLOYMENT; GROUNDS FOR TERMINATION - The Employee's
employment shall terminate in the event that at any time:
(i) The Employee dies,
(ii) The Board of Directors of the Company elects to terminate this
Agreement for "cause" and notifies the Employee in writing of such
election,
(iii) The Employee becomes "disabled," so that he cannot perform the
essential functions of his position with or without reasonable
accommodation,
(iv) The Board of Directors of the Company elects to terminate this
Agreement without "cause" and notifies the Employee in writing of such
election, or
(v) The Employee elects to terminate this Agreement and notifies the
Company in writing of such election.
If this Agreement is terminated such termination shall be effective 30 days
after delivery of the notice of termination.
(b) "Cause" Defined "Cause" means:
(i) The Employee has breached the provisions of this Agreement in
any material respect,
(ii) The Employee has engaged in willful and material misconduct,
including willful and material failure to perform the Employee's
duties as an officer or employee of the Company and has failed to cure
such default within 30 days after receipt of written notice of default
from the Company,
(iii) The Employee has committed fraud, misappropriation or
embezzlement in connection with the Company's business, or
(iv) The Employee has been convicted or has pleaded NOLO
CONTENDERE to criminal misconduct (except for parking violations,
occasional minor traffic violations and other similar minor
violations).
(c) EFFECT OF TERMINATION - Notwithstanding any termination of this
Agreement, the Employee, in consideration of his employment hereunder to
the date of such termination, shall remain bound by the provisions of this
Agreement which specifically relate to periods, activities or obligations
upon or subsequent to the termination of the Employee's employment.
(d) "DISABLED" DEFINED - "DISABLED" means any mental or physical
condition that renders the Employee unable to perform the essential
functions of his position, with or without reasonable accommodation, for a
period in excess of 3 months.
(e) SURRENDER OF RECORDS AND PROPERTY - Upon termination of his
employment with the Company, the Employee shall deliver promptly to the
Company all records, manuals, books,
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blank forms, documents, letters, memoranda, notes, notebooks, reports,
data, tables, calculations or copies thereof that relate in any way to the
business, products, practices or techniques of the Company, and all other
property, trade secrets and confidential information of the Company,
including, but not limited to, all documents that in whole or in part
contain any trade secrets or confidential information of the Company, which
in any of these cases are in his possession or under his control.
6. INDEMNIFICATION
In the event that Employee is made, or threatened to be made, a party to
any action or proceeding, whether civil or criminal, by reason of the fact that
he is or was a director, officer, or member of a committee of the Board of
Directors of the Company or serves or served any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise in any capacity
at the request of the Company, he shall be indemnified by the Company and the
Company shall advance his related expenses to the fullest extent permitted by
law (including without limitation, damages, costs and reasonable attorney fees),
as may otherwise be provided in the Company's Certificate of Incorporation and
ByLaws.
7. MISCELLANEOUS
(a) COUNTERPARTS - This Agreement may be executed in separate counterparts,
each of which will be an original and all of which taken together shall
constitute one and the same agreement, and any party hereto may execute this
Agreement by signing any such counterpart.
(b) SEVERABILITY - Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule, the validity,
legality and enforceability of the other provisions of this Agreement will not
be affected or impaired thereby. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by, any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered.
(c) SUCCESSORS AND ASSIGNS - This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection (e), successors and
assigns.
(d) ASSIGNABILITY - Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable (including by operation of law) by either party without the prior
written consent of the other party to this Agreement, except that the Company
may, without the consent of the Employee, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity with or
into which the Company may merge or consolidate, or to which the Company may
sell or transfer all or substantially all of its assets, or of which 50% or more
of the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company. Provided such
assignee explicitly assumes such responsibilities, after any such assignment by
the Company, the
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Company shall be discharged from all further liability hereunder and such
assignee shall thereafter be deemed to be the Company for the purposes of all
provisions of this Agreement including this Section 10.
(e) MODIFICATION, AMENDMENT, WAIVER OR TERMINATION - No provision of this
Agreement may be modified, amended, waived or terminated except by an instrument
in writing signed by the parties to this Agreement. No course of dealing between
the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement. No delay on the part of the Company or Employee in exercising any
right hereunder shall operate as a waiver of such right. No waiver, express or
implied, by the Company of any right or any breach by the Employee shall
constitute a waiver of any other right or breach by the Employee.
(f) NOTICES - All notices, consents, requests, instructions, approvals or
other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
If to the Company:
Facsimile:________________
Attn: Chief Executive Officer
If to the Employee:
Ms.
Any party may change the address set forth above by notice to each other party
given as provided herein.
(g) HEADINGS - The headings and any table of contents contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(h) GOVERNING LAW - ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW PROVISIONS THEREOF.
(i) VENUE; FEES AND EXPENSES. Any action at law, suit in equity or judicial
proceeding arising directly, indirectly, or otherwise in connection with, out
of, related to or from this Agreement, or any provision hereof, shall be
litigated only in the state courts located in the State of Connecticut, County
of Fairfield or the federal courts in the district which covers such county. The
Employee and the Company consent to the jurisdiction of such courts. The
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prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs in any such action.
(j) WAIVER OF RIGHT TO JURY TRIAL. Each party hereto hereby waives, except
to the extent otherwise required by applicable law, the right to trial by jury
in any legal action or proceeding between the parties hereto arising out of or
in connection with this Agreement.
(k) THIRD-PARTY BENEFIT - Nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
(1) WITHHOLDING TAXES - The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
THE PARTIES ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THIS AGREEMENT AND ANY EXHIBITS HERETO ARE THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS OR ALL
PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
ACCEPTED AND AGREED:
MARKLAND TECHNOLOGY, INC. Ms. JO-ANN NICHOLS
By /s/ Ken Ducey, Jr. /s/ Jo Ann Nichols
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Ken Ducey, Jr.
- --------------------------------
Print Name
Title: President
Date: 10-31-03 Date: 10/27/03
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