EXHIBIT 99.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of December 30, 2004 (the "EFFECTIVE Date"),
between Markland Technologies, Inc. (including as context requires its
subsidiaries, "THE COMPANY"), a Florida corporation, and Dr. Joseph P. Mackin,
(the "EMPLOYEE") located in Boston, MA.
NOW WITNESSETH THAT
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
WHEREAS the Employee, wishes to be retained and employed by the Company on such
terms 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. ENGAGEMENT - The Company hereby employs the Employee, and the Employee
accepts such engagement and agrees to perform services for the Company, for the
period and upon the other terms and conditions set forth in this Agreement.
2. TERM - Unless terminated at an earlier date in accordance with Section 8 of
this Agreement or otherwise extended by agreement of the parties, the term of
the Employee's engagement hereunder shall be for a period of five years,
commencing on December 15, 2004. The period of engagement may be extended by
written agreement or e- mail between the parties, provided that certain
provisions relating to compensation may change upon commencement of any
extension hereto.
3. POSITION AND DUTIES
(a) SERVICE WITH COMPANY - During the term of the Employee's
engagement, the Employee agrees to perform such reasonable services as
the Board of Directors of the Company (the "BOARD") shall assign to the
Employee from time to time. The Employee shall commence as an officer
of The Company with the title of Chief Operating Officer (COO), and
with title of President and Chief Executive Officer (CEO) of the
Company's wholly-owned subsidiary, EOIR Technologies, Inc., a Virginia
corporation.
(b) PERFORMANCE OF DUTIES - The Employee agrees to serve the Company
faithfully and to the best of the Employee's ability and to devote a
reasonable amount of time, attention and efforts to the business and
affairs of the Company during the Employee's engagement by the Company.
The Employee hereby confirms that the Employee is under no contractual
commitments inconsistent with the Employee's obligations set forth in
this Agreement and that during the term of this Agreement, the Employee
will not render or perform services for any other corporation, firm,
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entity or person, which are inconsistent with the provisions of this
Agreement. While the Employee remains 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 the Employee's obligations under this
Agreement.
4. COMPENSATION
(a) BASE CONSIDERATION - As compensation for services to be rendered by
the Employee under this Agreement, the Company shall pay to the
Employee during the term of the contract a base payment of $ 25,000 per
month (total of $ 300,000 per year, the "ANNUAL SALARY"), which payment
shall be paid semi-monthly in arrears in accordance with the Company's
normal procedures and policies.
(b) INCENTIVE COMPENSATION - In addition to the base payment, the
Employee shall be eligible to participate in any bonus or incentive
compensation plans that may be established by the Board from time to
time applicable to the Employee's services.
(c) EXPENSES- The Company will pay or reimburse the Employee for all
reasonable and necessary out-of-pocket expenses incurred by the
Employee in the performance of the Employee's duties under this
Agreement, subject to the Company's normal policies for expense
verification. In addition, the Company agrees to provide the Employee
with $4,000 monthly for auto expense, business office expense, medical
and life insurance expenses, and other personal expenses.
(d) ACCELERATION OF EXISTING OPTIONS -All of the pre-priced options
granted to the Employee as a result of the Company's acquisition of
EOIR Technologies, Inc., on June 30, 2004, to wit 1,250,286 options to
purchase shares of the Common Stock, par value $0.0001 per share, of
the Company (the "COMMON STOCK") at an exercise price of $0.3775 per
share, are vested upon execution of this agreement.
(e) DEBT-TO-EQUITY CONVERSION - as a consequence of the Employee's
engagement and execution of this Agreement, the Employee shall be
eligible, at the Employee's discretion, to participate in any program
by which debt owed to the Employee by the Company may be converted to
equity ownership in the Company as may, from time to time, be enacted
by the Board.
(f) INITIAL GRANT OF STOCK - The Company agrees to conditionally grant
to Employee shares of Common Stock at six different periods: (i) the
first ("GRANT ONE") being January 3, 2005; (ii) the second ("GRANT
TWO") being upon the conclusion of a one (1) year period following
January 2, 3005; (iii) the third ("GRANT THREE") being upon the
conclusion of a two (2) year period following January 3, 2005; (iv) the
fourth ("GRANT FOUR") being upon conclusion of a three (3) year period
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following January 3, 2005; (v) the fifth ("GRANT FIVE") being upon
conclusion of a four (4) year period following January 3, 2005; and
(vi) the sixth ("GRANT SIX") being upon the conclusion of a five (5)
year period following January 3, 2005. (Grant One, Grant Two, Grant
Three, Grant Four, Grant Five and Grant Six may be referred to
collectively as the "GRANT" or the "GRANTS"). Each Grant shall be in
the amounts, as follows:
---------------------------------- -------------------------------- --------------------------------
GRANT NUMBER OF SHARES GRANT DATE
---------------------------------- -------------------------------- --------------------------------
Grant One 2,000,000 January 3, 2005
---------------------------------- -------------------------------- --------------------------------
Grant Two 1,250,000 January 3, 2006
---------------------------------- -------------------------------- --------------------------------
Grant Three 1,250,000 January 3, 2007
---------------------------------- -------------------------------- --------------------------------
Grant Four 750,000 January 3, 2008
---------------------------------- -------------------------------- --------------------------------
Grant Five 750,000 January 3, 2009
---------------------------------- -------------------------------- --------------------------------
Grant Six 750,000 January 3, 2010
---------------------------------- -------------------------------- --------------------------------
The Grant will be earned based upon Performance Criteria
achieved by the Company as defined below. At any time after the Company
has implemented an effective Employee Stock Ownership Program, the
Employee may opt to accept option grants in lieu of restricted Common
Stock Grants of an equivalent value to the Common Stock Grant. The
Employee may do so at each individual Grant date.
Each Grant is conditioned upon the Company achieving its
year-end performance objectives for revenue and profitability, based on
a plan to be ratified by the Board of Directors of the Company (the
"Board") during regularly scheduled meetings for each of the applicable
years. For example, whether Grant One occurs will be measured against
the plan set forth by the Board in the first quarter of year 2004 for
year 2004.
The subject shares issued via each Grant are non-transferable and
subject to forfeiture until vested in accordance with this agreement.
(e) REGISTRATION RIGHTS - In the event of a registration of Company
common stock following the Final Date, Employee shall have the right to
participate in such registration at Company's expense. Additionally,
for a period of five years from the date of this Agreement, Employee
shall have preemptive rights in the event of any potentially dilutive
event, such that Employee may, within a reasonable time, elect to
participate in such dilutive event under the terms thereof to maintain
Employee's then current percentage interest in the Company.
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(f) BONUS OPTIONS: The Employee shall be eligible to receive bonus
options as may be payable pursuant to the performance criteria as
described below in Section (h).
(g) CASH BONUS: The Employee shall be eligible to receive a bonus as
may be payable pursuant to the performance criteria as described below
in Section (h). The Cash Bonus shall not exceed 300% of the Employee's
annual salary.
(h) PERFORMANCE CRITERIA: For any quarter of the Company's operation
the Employee may be eligible for a portion of his bonus if the Company
achieves revenue or revenue and profit milestones set forth by the
Board in its periodic meetings.
(i) CHANGE OF CONTROL - In the event of a change of control of the
Company during the period covered by this Agreement, all stock options
granted above shall vest immediately and all cash and expense
compensation due for the earlier of 1) three years from the date of
change of control, or 2) until the end of the Term of this Agreement,
shall be placed in escrow in an account established by the Company with
the designated escrow agent who will distribute such funds in accord
with escrow agreement dated ______________________ between the Company
and such escrow agent. The designated escrow agent shall be David
Broadwin, Esq. of Foley & Hoag of Boston, MA. A change of control will
be defined as a change in the majority ownership of the equity of the
Company, or the involuntary resignation or termination of a majority of
the directors on the Board within a 2 month period, or the involuntary
replacement of the CEO of the Company.
(k) REGISTRATION - All Employee's Shares and Accrued Shares
(collectively the "EMPLOYEE'S SHARES") may be unregistered shares.
Such unregistered shares shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION nOR THE SECURITIES
COMMISSION OF ANY STATE, 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 LAW.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER AND REPURCHASE RIGHTS OF THE CORPORATION SET FORTH IN AN
AGREEMENT BETWEEN THIS CORPORATION AND THE REGISTERED HOLDER HEREOF,
DATED DECEMBER 30, 2004, A COPY OF WHICH WILL BE PROVIDED TO THE HOLDER
HEREOF BY THE CORPORATION UPON WRITTEN REQUEST AND WITHOUT CHARGE.
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Employee's Shares shall not contain the legend set forth above, nor any
other restrictive legend, if all of the following conditions are
satisfied: (i) there is an effective Registration Statement under the
Securities Act for the Employee's Shares at the time; and (ii) the
Employee has delivered a certificate to the Company to the effect that
that Employee will comply with all applicable prospectus delivery
requirements under the Securities Act in any sale or transfer of the
Employee's Shares by the Employee. The Company agrees that it will
provide the Employee, upon request, with a certificate or certificates
representing Employee's Shares free from such legend, at such time as
such legend is no longer required hereunder. Alternatively the company
agrees that it will provide the Employee upon request with a
certificate or certificates representing a portion of Employee's Shares
(not to exceed 750,000 shares) free from such legend, upon receipt of
an opinion of counsel satisfactory to the company that a sale of such
shares is deemed not to be a distribution pursuant to 17 CFR 230.144
("RULE 144"). The Company may not make any notation on its records nor
give instructions to any transfer agent of the Company which enlarges
the restrictions of transfer set forth in this Section.
(l) STOCK RESTRICTION AND REPURCHASE - Prior to satisfaction of the
following conditions (the "CONDITIONS"): (i) there is an effective
Registration Statement under the Securities Act covering the Employee's
Shares; and (ii) the Employee has delivered a certificate to the
Company to the effect that that Employee will comply with all
applicable prospectus delivery requirements under the Securities Act in
any sale or transfer of the Employee's Shares by the Employee, neither
the Employee's Shares nor any interest therein shall be sold, assigned
or otherwise transferred, whether by operation of law or otherwise,
except to the Company pursuant to this Agreement, provided that the
Employee may transfer such shares to members of his or her immediate
family for estate planning purposes so long as such transferees agree,
in writing, to be bound by the terms of this agreement, and further
provided that the Employee may sell up to seven hundred fifty thousand
(750,000) of such Shares pursuant to Rule 144.
The Company shall not be required to transfer any Shares on its books
which have been transferred in violation of this Agreement, or to treat
as owners of such Shares, or accord the right to vote as such owner, or
to pay dividends to any person or organization to which any such Shares
have been sold, assigned or otherwise transferred in violation of this
Agreement.
In the event that the Employee ceases to be employed by the Company,
for any reason or no reason, with or without cause, the Company shall
have the right and option to purchase from the Employee or his personal
representative, as the case may be, for the sum of $0.01 per Share, up
to, but not exceeding, the aggregate number of Employee's Shares
issued, less the number of Employee's Shares for which the Conditions
have been satisfied or have been disposed of pursuant to Rule 144.
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The Company may exercise its Repurchase Option by delivering or mailing
to the Employee (or his estate), within sixty (60) days after the
Employee's last day of employment with the Company (the "TERMINATION
DATE"), a written notice of exercise of the Repurchase Option. Such
notice shall specify the number of Shares to be purchased and shall be
accompanied by a check in the amount of the purchase price for such
Shares. If, and to the extent that, the Repurchase Option is not
exercised by so giving the aforementioned notice within such sixty (60)
day period, the Repurchase Option shall automatically expire and
terminate effective upon the expiration of the sixty (60) day period.
The Company, upon termination or exercise of the Repurchase Option,
shall deliver to the Employee (or his estate) a certificate
representing the shares, if any, as to which he is entitled to
ownership free and clear of such Repurchase Option.
All notices hereunder shall be in writing and shall be personally
delivered or sent by registered or certified mail, postage prepaid,
return receipt requested to the Employee (or his estate) at his or her
address shown on the records of the Company. Any notice so sent by
registered or certified mail shall be deemed received by the Employee
upon mailing.
5. CONFIDENTIAL INFORMATION - Except as permitted or directed by the Board,
during the term of the Employee's engagement 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 the Employee's engagement by the
Company (including engagement by the Company or any affiliated companies prior
to the date of this Agreement) whether developed by the Employee himself 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 the Employee's engagement, 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 and publicly available 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.
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6. VENTURES - If, during the term of the Employee's engagement 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, unless
prior written consent from the Company is obtained. Except as approved by the
Board, 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.
7. PATENT AND RELATED MATTERS
(a) DISCLOSURE AND ASSIGNMENT - The Employee will promptly disclose in
writing to the Company complete information concerning each and every
invention, discovery, improvement, device, design, apparatus, practice,
process, method or product, whether patentable or not, made, developed,
perfected, devised, conceived or first reduced to practice by the
Employee, either solely or in collaboration with others, during the
term of this Agreement, whether or not during regular working hours,
relating either directly or significantly and indirectly to the
business, products, practices or techniques of the Company
("Developments"). The Employee, to the extent that The Employee has the
legal right to do so, hereby acknowledges that any and all of the
Developments are the property of the Company and agrees to assign and
hereby assigns to the Company any and all of the Employee's right,
title and interest in and to any and all of the Developments
("Assignment"). During the period commencing upon the day after the
Employee's last day performing services for the Company and ending one
year after termination of the Employee's engagement with the Company,
at the reasonable request of the Company, the Employee will confer with
the Company and its representatives for the purpose of disclosing all
Developments to the Company, provided that such conference is at the
Company's expense and the Employee is compensated at an hourly rate
equal to the Employee's final Annual Salary divided by two thousand
(2000).
(b) LIMITATION ON SECTION 7(a) - The provisions of Section 7(a) shall
not apply to any Development meeting the following conditions: (i) such
Development was developed entirely on the Employee's own time without
the use of any Company equipment, supplies, facility or trade secret
information; and (ii) such Development does not relate directly or
significantly to the business of the Company to the Company's actual or
demonstrably anticipated research or development; or result from any
work performed by the Employee for the Company.
(b) COPYRIGHTABLE MATERIAL - All right, title and interest in all
copyrightable material that the Employee shall conceive or originate,
either individually or jointly with others, and which arise out of the
performance of this Agreement, will be the property of the Company and
are by this Agreement assigned to the Company along with ownership of
any and all copyrights in the copyrightable material. Upon request and
without further compensation therefor, but at no expense to the
Employee, the Employee shall execute all papers and perform all other
acts necessary to assist the Company to obtain and register copyrights
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on such materials in any and all countries, except that the Employee
shall be compensated at an hourly rate equal to the Employee's final
Annual Salary divided by two thousand (2000) for the Employee's time
for compliance with this provision following termination or expiration
of this Agreement. Where applicable, works of authorship created by the
Employee for the Company in performing the Employee's responsibilities
under this Agreement shall be considered "WORKS MADE FOR HIRE," as
defined in the U.S. Copyright Act. To the extent not considered as work
made for hire, such works will be considered assigned to The Company
under the Assignment provision of this Section 7.
(c) KNOW-HOW AND TRADE SECRETS - All know-how and trade secret
information conceived or originated by the Employee that arises out of
the performance of the Employee's obligations or responsibilities under
this Agreement or any related material or information shall be the
property of the Company, and all rights therein are by this Agreement
assigned to the Company.
8. TERMINATION OF ENGAGEMENT
(a) GROUNDS FOR TERMINATION - The Employee's engagement shall terminate
prior to the expiration of the initial term set forth in Section 2 or
any extension thereof in the event that at any time: (i) the Employee
dies; (ii) the Board elects to terminate this Agreement for "cause" and
notifies the Employee in writing of such election; (iii) the Board
elects to terminate this Agreement without "cause" and notifies the
Employee in writing of such election; (iv) the Employee elects to
terminate this Agreement and notifies the Company in writing of such
election; or (v) the Employee elects to terminate this Agreement for
"good reason" (as defined below) and notifies the Company in writing of
such election. If this Agreement is terminated pursuant to clause (i)
or (ii) of this Section 8(a), such termination shall be effective
immediately. If this Agreement is terminated pursuant to clause (iii),
(iv), or (v) of this Section 8(a), such termination shall be effective
30 days after delivery of the notice of termination.
(b) "CAUSE" means that (i) the Employee has breached the provisions of
Section 5, 6 or 7 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 he Company and has failed to cure such default
within 30 days after receipt of written notice of default from the
Board, (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 the Employee's engagement
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 engagement.
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(d) SURRENDER OF RECORDS AND PROPERTY- Upon termination of the
Employee's engagement with The Company, the Employee shall deliver
promptly to the Company all records, manuals, books, 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 the Employee's possession or under
the Employee's control.
(e) PAYMENT CONTINUATION - If the Employee's engagement by the Company
is terminated by the Company pursuant to clause (iii) of Section 8(a)
or by the Employee for Good Reason pursuant to clause (v) of Section
8(a), the Company shall continue to pay to the Employee the Employee's
Annual Salary payments (less any payments received by the Employee from
any disability income insurance policy provided to The Employee by The
Company) and shall continue to provide health insurance benefits for
the Employee through the earlier of (a) the date that the Employee has
obtained other equivalent full-time engagement, or (b) the expiration
of this agreement. Future option grants under this agreement will cease
and the all options granted to date will immediately vest. If this
Agreement is terminated pursuant to clauses (i), (ii) or (iv) of
Section 8(a), the Employee's right to base payment and benefits shall
immediately terminate, except as may otherwise be required by
applicable law and all unvested options shall be cancelled.
(f) "GOOD REASON" DEFINED - Good Reason shall mean: (i) the assignment
of the Employee to any duties inconsistent in any respect with the
Employee's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by
Section 3(a) or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Employee; (ii)
any termination or reduction of a material benefit under any benefits
plan in which the Employee participates unless (1) there is substituted
a comparable benefit that is economically substantially equivalent to
the terminated or reduced benefit prior to such termination or
reduction or (2) benefits under such plan are terminated or reduced
with respect to all the Employees previously granted benefits
thereunder; (iii) without limiting the generality of the foregoing, any
material breach of this Agreement by the Company or any successor
thereto.
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9. INDEMNIFICATION - In the event that the 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 the Employee is or was a director, officer, or member of a
committee of the Board or serves or served any other corporation, partnership,
joint venture, trust, the Employee benefit plan or other enterprise in any
capacity at the request of the Company, or resulting from any of the Employee's
actions in any of the foregoing roles the Employee shall be indemnified by the
Company and the Company shall advance the Employee's 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 By Laws as incurred and will start prior to any
judicial preceding. The Company further covenants not to amend or repeal any
provisions of the Certificate of Incorporation or Bylaws of The Company in any
manner which would adversely affect the indemnification or exculpatory
provisions contained therein as they pertain to acts. The provisions of this
Section are intended to be for the benefit of, and shall be enforceable by, each
indemnified party and the Employee's heirs and representatives. If the Company
or any of its successors or assigns (i) shall consolidate with or merge into any
other corporation or entity and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or (ii) shall transfer all
or substantially all of its properties and assets to such Person, then and in
each such case, proper provisions shall be made so that the successors and
assigns of the Company shall assume all of the obligations set forth in this
section 9.
10. 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) 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
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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 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 the 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:
Robert Tarini
#207 - 54 Danbury Road
Ridgefield, CT 06877
If to the Employee:
15 Maypole Road
Quincy, MA
02169
Any party may change the address set forth above by notice to the other party
given as provided herein.
(g) HEADINGS - The headings and any table of contents contained in this
Agreement arefor 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.
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(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 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.
(l) 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.
FURTHER, THE EMPLOYEE DOES ACKNOWLEDGE THAT HE HAS HAD THE OPPORTUNITY, TO HIS
SATISFACTION, PRIOR TO EXECUTING THIS AGREEMENT, TO HAVE THIS AGREEMENT REVIEWED
BY INDEPENDENT COUNSEL OF HIS OWN CHOOSING.
ACCEPTED AND AGREED:
MARKLAND TECHNOLOGY, INC. DR. JOSEPH P. MACKIN
By: Robert Tarini
Chief Executive Officer
/s/ Robert Tarini /s/ Joseph P. Mackin
- -------------------------------- -----------------------------
Date: 12-30-2004 Date: 12-30-2004
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