EXHIBIT 4.13
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THE RESEARCH WORKS, INC.
623 Ocean Avenue, Sea Girt, New Jersey 08750
Telephone: (732) 682-4950 Web: www.stocksontheweb.com
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November 12, 2003
Mr. Ken Ducey, Jr.
President
Markland Technologies, Inc.
54 Danbury Road, #207
Ridgefield, CT 06877
Dear Mr. Ducey:
This letter agreement (the "Agreement") will confirm our understanding regarding
the engagement of THE RESEARCH WORKS, INC. ("RW"), a New Jersey corporation, to
provide equity research services to MARKLAND TECHNOLOGIES, INC. ("Client") a
Florida corporation.
Whereas RW is an independent research firm that provides research services with
respect to the securities of its clients, and whereas Client has publicly traded
securities and desires RW to provide equity research services with respect to
its common stock, in consideration of the mutual covenants herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, RW and Client hereby agree as follows:
1. TERM. The term of this Agreement ("Term") shall commence on the date of
your signing of this Agreement and shall continue through the one-year
anniversary of the release of the first RW equity research report on the
Client ("End of the Full Term"), unless either party terminates this
Agreement, with or without cause, at an earlier date ("Early Termination
Date") upon delivery of written notice to the other party at the address
set forth hereinbelow.
2. RW SERVICES. RW shall prepare an equity research report on Client
("Report") in substantially the same form as samples of RW's research
reports presently displayed at RW's Web site (www.stocksontheweb.com).
Client shall have no editorial control over the opinions expressed in the
Report, and RW shall not supply a draft copy of the Report to Client.
RW shall complete and post a copy of the finished Report at its Web site
within two (2) months of the date of this Agreement and shall update the
Report on its Web site on approximately a monthly basis for the remainder
of the Term. Client may make suggestions for changes regarding the factual
content of the Report at any time after the initial Report is posted on
RW's Web site, but RW is under no obligation to accept such proposed
changes, and RW retains exclusive control over the opinions expressed in
the Report.
Following the initial posting of the Report on its Web site, RW shall print
and distribute the Report at its own expense to individual and
institutional investors whom RW believes have an interest in
small-capitalization stocks. The date of such printing and distribution
shall be at RW's sole discretion. RW shall also mail 100 copies of the
Report to Client, and Client shall have permission to duplicate the Report
at its own expense or to purchase additional original copies from RW for a
nominal fee.
3. FEE. In consideration of RW's services, the Client shall pay to RW a fee
("Fee") consisting of that number of Client's common shares that is equal
to one hundred thousand dollars ($100,000) divided by the average of the
closing (last trade) prices of Client's common stock on the 10 trading days
following the date on which you sign this Agreement. Fifty Percent of this
Fee is due and payable upon the date on the sixth day after you sign this
Agreement, and Fifty Percent of this Fee is due on the sixth day after the
report is published. The shares shall be issued in certificate form for The
Research Works, Inc. (623 Ocean Avenue, Sea Girt, NJ 08750; tax #
22-3173901).
RW acknowledges that the common shares issued pursuant to this Agreement
(a) have not been registered under the Securities Act of 1933, as amended
(the "Act"), (b) cannot be offered or sold except pursuant to a
registration statement under the Act or an exemption from registration
under the Act, and (c) are being acquired for investment and not with a
view to the distribution thereof. RW represents that it is an "accredited
investor" as such term is defined by Rule 501(a) of Regulation D and also
acknowledges that its officers and directors are capable of evaluating the
merits and risks of an investment in Client's common shares.
Should the Client terminate this Agreement prior to the End of the Full
Term for any reason other than RW's failure to perform in accordance with
the terms set forth in this Agreement, then no portion of the Fee shall be
refunded to the Client.
Should the Client terminate this Agreement prior to the End of the Full
Term for RW's failure to perform in accordance with the terms set forth in
this Agreement, then a percentage of the Fee shall be refunded to the
Client; this percentage is the product of 50% times the result of the
division of the number of days from the Early Termination Date until the
End of the Full Term by the number of days from the commencement of the
Term until the End of the Full Term.
Notwithstanding the foregoing, Client shall recover the entire Fee from RW
if Client terminates this Agreement based on RW's failure to release the
initial Report in accordance with the time and manner mandated by Paragraph
2.
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Should RW terminate this Agreement prior to the End of the Full Term, then
a percentage of the Fee shall be refunded to the Client; this percentage
shall be the product of 50% times the result of the division of the number
of days from the Early Termination Date until the End of the Full Term by
the number of days from the commencement of the Term until the End of the
Full Term.
Notwithstanding the foregoing, RW shall refund the entire Fee to Client if
RW terminates this Agreement prior to the release of the initial Report for
any reason other than Client's failure to perform in accordance with the
terms set forth in this Agreement.
4. CLIENT'S REPRESENTATIONS AND COVENANTS. Client represents and covenants
that:
(a) it will not use the Report in connection with any offering without the
prior written consent of RW;
(b) it and its principals will keep confidential their knowledge of the
pending release of the Report;
(c) it will distribute the Report only in its entirety and in conformity
with all securities laws;
(d) it will cease any distribution of the Report when facts or management's
expectations are materially different from those presented or estimated in
such Report;
(e) it has received a copy of RW's brochure and Part II of RW's ADV
application, both of which are available for viewing at RW's web site
(www.stocksontheweb.com); and
(f) it will indemnify and hold RW and its officers, employees and
independent contractors harmless from and against any loss, damage,
liability, or expense (including reasonable attorneys' fees and other costs
of litigation, regardless of outcome) arising out of or in connection with
(i) any breach of the representations and covenants made by Client in this
Paragraph 4, (ii) false or misleading information provided to RW by Client,
or (iii) claims relating to the purchase and/or sale of Clients' securities
arising from RW's relationship with Client. Such indemnifications shall
continue for a period of five (5) years beyond the end of the Term.
5. ARBITRATION. Any dispute between RW and Client, either during or after the
Term, shall be subject to binding arbitration before a three-arbitrator
panel in accordance with the rules of the American Arbitration Association.
Prior to the selection of the arbitrators of the binding arbitration, the
parties shall first attempt non-binding mediation before a mediator
selected by said Association. Each party shall bear its own costs relating
to such mediation, including attorney's fees and expenses. In the event the
parties are unable to resolve the dispute through mediation and the
arbitrators reach a decision in favor of one of the parties then the other
party shall be responsible for all costs of the first party relating to the
arbitration, including attorney's fees and expenses, subject however to the
discretion of the arbitrators to reallocate these costs if cause is so
found by the arbitrators. Unless another location is mutually agreed upon
by both parties, the mediation and arbitration are to take place in the
State of New Jersey.
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6. NOTICES. Notices to RW are to be delivered to William J. Ritger at the
address in this letterhead. Notices to the Client are to be delivered to
the individual to whom this letter is directed, at the inside address of
this letter. The parties to this Agreement may change these addresses by
giving written notice.
7. IMPAIRED PROVISION. If any provision of this Agreement is held invalid,
illegal or unenforceable in any respect (an "Impaired Provision"),
(a) such Impaired Provision shall be interpreted in such a manner as to
preserve, to the maximum extent possible, the intent of the parties,
(b) the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and
(c) such decision shall not affect the validity, legality or enforceability
of such Impaired Provision under other circumstances. The parties agree to
negotiate in good faith and agree upon a provision to substitute for the
Impaired Provision in the circumstances in which the Impaired Provision is
invalid, illegal or unenforceable.
8. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and shall not be
modified, except by a written document signed by the parties.
9. PARAGRAPH HEADINGS. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in
connection with the interpretation of this Agreement.
10. FACSIMILE COPIES. Duly executed facsimile copies are fully binding under
any and all applicable laws.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without regard to the
principles of conflict of laws.
(The remainder of this page is left blank intentionally.)
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Please confirm your agreement with the foregoing by signing and returning one
copy of this letter to the undersigned whereupon this letter shall become a
binding Agreement. The offer to enter into this Agreement shall expire 14 days
from the date of this letter.
Very truly yours,
THE RESEARCH WORKS, INC.
By: /s/ William J. Ritger
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William J. Ritger
President
AGREED TO AS OF THE DATE BELOW:
MARKLAND TECHNOLOGIES, INC.
By: /s/ Ken Ducey, Jr.
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Ken Ducey, Jr.
President
Date:
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