EXHIBIT 99.8
STRATEGIC OPERATIONS CONTRACTOR AGREEMENT
STRATEGIC OPERATIONS CONTRACTOR AGREEMENT (this "AGREEMENT") dated as
of December 30, 2004, and with an effective date of January 1, 2004 ("EFFECTIVE
DATE") between Markland Technology, Inc. (including, as the context may require,
its subsidiaries, the "COMPANY"), a Florida corporation, and Asset Growth
Company (the "Contractor"), a Connecticut corporation.
WITNESSETH THAT,
WHEREAS, the Company and the Contractor had previously entered into an
Strategic Operations Contractor Agreement dated May 12, 2004 (the "PRIOR
AGREEMENT"); and
WHEREAS, pursuant to Section 4(d) of the Prior Agreement, the
Contractor was granted certain shares of the Common Stock of the Company and
that said shares are restricted and subject to forfeiture; and
WHEREAS, pursuant to Section 4(d) of the Agreement, it is anticipated
that the Contractor will receive additional shares of the Common Stock of the
Company (the "COMMON STOCK", or the "SHARES") at regular intervals and that such
shares shall be restricted and subject to forfeiture; and
WHEREAS, it was, and is, the intention of the Company and the
Contractor that such Shares are subject to forfeiture in the event that
Contractor's engagement with the Company terminates prior to the United States
Securities and Exchange Commission (the "SEC") declaring effective a
Registration Statement covering the aforementioned shares or certain other
conditions; and
WHEREAS, it is the intention of the Company and the Contractor to
modify the schedule under which the Shares are granted; and
WHEREAS, to accomplish the foregoing, the Company and Contractor wish
to supplant the prior Agreement with this Agreement retroactive from the
Effective Date.
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. TERMINATION OF PRIOR AGREEMENT; CURRENT ENGAGEMENT -The Prior Agreement is
hereby deemed performed through the Effective Date and is hereby terminated
as of the Effective Date. The Company hereby engage the Contractor, and the
Contractor 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 Contractor's engagement hereunder shall be for a period of five
years, commencing on January 2, 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.
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3. POSITION AND DUTIES
(a) SERVICE WITH COMPANY - During the term of the Contractor's engagement,
the Contractor agrees to perform such reasonable services as the Board
of Directors of the Company (the "BOARD") shall assign to Contractor
from time to time. The Contractor shall commence this relationship
providing the following services: (i) Advice on proper deal structures
for Company business development activities, and (ii) Administrative
services and support for Company executive staff and customers.
(b) PERFORMANCE OF DUTIES - The Contractor agrees to serve the Company
faithfully and to the best of Contractor's ability and to devote a
reasonable amount of its employees' time, attention and efforts to the
business and affairs of the Company during Contractor's engagement by
the Company. The Contractor hereby confirms that Contractor is under
no contractual commitments inconsistent with Contractor's obligations
set forth in this Agreement and that during the term of this
Agreement, Contractor will not render or perform services for any
other corporation, firm, entity or person, which are inconsistent with
the provisions of this Agreement. As an independent contractor,
Contractor may engage in other professional activities so long as such
activities do not interfere with the performance of Contractor's
obligations under this Agreement.
4. COMPENSATION
(a) BASE CONSIDERATION - As compensation for services to be rendered by
the Contractor under this Agreement, the Company shall pay to the
Contractor during the term of the contract a base payment of $10,000
gross per month (total of $120,000 per year, the "ANNUAL
COMPENSATION"), which payment shall be paid in arrears in accordance
with the Company's normal procedures and policies.
(b) INCENTIVE COMPENSATION - In addition to the base payment, the
Contractor 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 Contractor for all
reasonable and necessary out-of-pocket expenses incurred by Contractor
in the performance of Contractor's duties under this Agreement,
subject to the Company's normal policies for expense verification. In
addition, Company agrees to provide Contractor with up to $5,000
monthly for expenses.
(d) INITIAL GRANT OF STOCK - As a further incentive to Contractor's
performance under this Agreement, the company agrees to CONDITIONALLY
grant to Contractor shares of common stock in the Company at five
different periods: (i) the first ("GRANT ONE") being upon the
conclusion of a ninety (90) day period following January 2, 2004; (ii)
the second ("GRANT TWO") being upon the conclusion of a
one-hundred-eighty (180) day period following January 2, 2004; (iii)
the third ("GRANT THREE") being upon the conclusion of a
two-hundred-seventy (270) day period following January 2, 2004; (iv)
the fourth ("GRANT FOUR") being upon conclusion of a one (1) year
period following the effective dated; and (v) the fifth ("GRANT FIVE")
being upon conclusion of a five hundred forty (540) day period
following the effective date (Grant One, Grant Two, Grant Three, Grant
Four, and Grant Five) may be referred to collectively as the "GRANT"
or the "Grants"). Each Grant shall be equivalent to a "STOCK
PERCENTAGE" of the Company Equity (as defined below) calculated as of
the "FINAL DATE" associated with that Grant, as follows:
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GRANT STOCK PERCENTAGE FINAL DATE
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Grant One 2.0% April 1, 2004
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Grant Two .75% July 1, 2004
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Grant Three .75% October 1, 2004
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Grant Four 1.5% January 3, 2005
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Grant Five 0.5% July 1, 2005
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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 ESOP program the Contractor may opt to accept option grants in
lieu of restricted Common Stock Grants of an equivalent value to the Common
Stock Grant. The Contractor may do so at each individual Grant date.
The number of shares of Common Stock reflected by the Stock Percentage
("Contractor's Shares") shall be calculated against all issued and
outstanding capital stock or other equity or conversion right in the
Company inclusive of warrants or options (in aggregate the "Company
Equity"). With respect to any convertible stock of the Company, including
without limitation preferred stock classes C and D, and any other
conversion right, the calculation determining the number of Contractor's
Shares shall be made as if each such conversion had taken place in
accordance with the conversion rights associated with such security,
(without regard to limitations on the number of shares that may be
converted in a single instance or in a defined period), on the Final Date
("Imputed Conversion"). The price of the Common Stock to be used for
calculating the Imputed Conversion shall be the average price of the Common
Stock for the 10 business days prior to the Final Date reflected on the
NASD/OTCBB Market or if the Common Stock is no longer listed on that
market, the principal securities exchange or trading market on which the
Common Stock is listed or traded, including the pink sheets. With respect
to each Grant the final calculation of the total number of Contractor's
Shares shall be made within fifteen days of the Final Date, in accordance
with the following formula ("Formula"):
Total # Contractor's Shares = applicable Stock Percentage x the Company
Equity
The Company Equity = total Common Shares outstanding including options and
warrants as of the Final Date
+ number of Common Shares resulting from Imputed Conversion
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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 - All Contractor's Shares and Accrued Shares
(collectively hereafter referred to as "Contractor'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 OR 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 LAWS.
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.
Contractor'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 Contractor's Shares at the time; and (ii) the
Contractor has delivered a certificate to the Company to the effect that
that Contractor will comply with all applicable prospectus delivery
requirements under the Securities Act in any sale or transfer of the
Contractor's Shares by the Contractor. The Company agrees that it will
provide the Contractor, upon request, with a certificate or certificates
representing Contractor'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 Contractor 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.
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(f) REGISTRATION RIGHTS - In the event of a registration of Company
common stock following the Final Date, Contractor 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, Contractor shall have
preemptive rights in the event of any potentially dilutive event (excluding
exercise of any conversion rights accounted for in the Imputed Conversion
in Paragraph 4 (d) above), such that Contractor may, within a reasonable
time, elect to participate in such dilutive event under the terms thereof
to maintain Contractor's then current percentage interest in the Company.
(g) BONUS: Contractor shall be eligible to receive a bonus as may be
payable pursuant to the performance criteria as described below in Section
(h). The Bonus shall be based on 300% of the Contractor's Annual
Compensation.
(h) PERFORMANCE CRITERIA: For any quarter of the company's operation
the Contractor 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. For the first year of this Agreement, the milestone
shall be $1.0 million in each quarter and $6 million for the calendar year
2004.
(i) CHANGE OF CONTROL - In the event of a change of control of the
Company during the period covered by this Agreement, all stock grants
listed above shall be granted 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. The designated escrow agent shall be Mr. 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 Company Equity of the
Company, or the resignation or termination of the majority of the directors
on the Board within a 2 month period or the replacement of either the CEO,
President, or CFO of the Company.
(j) 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 Contractor's
Shares; and (ii) the Contractor has delivered a certificate to the Company
to the effect that that Contractor will comply with all applicable
prospectus delivery requirements under the Securities Act in any sale or
transfer of the Contractor's Shares by the Contractor, neither the
Contractor'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 Contractor 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.
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In the event that the Contractor ceases to be engaged 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 Contractor, or its trustees in
dissolution, as the case may be, for the sum of $0.01 per Share, up to, but
not exceeding, the aggregate number of Contractor's Shares issued, less the
number of Contractor's Shares for which the Conditions have been satisfied
or have been disposed of pursuant to Rule 144.
The Company may exercise its Repurchase Option by delivering or mailing to
the Contractor within sixty (60) days after the Contractor's last day of
engagement 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 Contractor 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 Contractor at its address shown on the records of the
Company. Any notice so sent by registered or certified mail shall be deemed
received by the Contractor upon mailing.
5. CONFIDENTIAL INFORMATION - Except as permitted or directed by the Company's
Board of Directors, during the term of Contractor's engagement or at any
time thereafter, the Contractor 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 Contractor has acquired or become
acquainted with or will acquire or become acquainted with prior to the
termination of the period of Contractor's engagement by the Company
(including engagement by the Company or any affiliated companies prior to
the date of this Agreement) whether developed by Contractor self/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 Contractor 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
Contractor's engagement, the Contractor 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 Contractor.
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6. VENTURES - If, during the term of Contractor's engagement the Contractor 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 Company's Board of Directors, the Contractor 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 Contractor as provided in
this Agreement. The Contractor shall not enter into any arrangement through
which Contractor acquires or may acquire any interest, direct or indirect,
in any vendor or customer of the Company other than Contractor.
7. PATENT AND RELATED MATTERS; DISCLOSURE AND ASSIGNMENT - The Contractor 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 Contractor, either solely or in collaboration with others, during
the term and in the course of performance of this Agreement, relating
either directly or significantly and indirectly to the business, products,
practices or techniques of the Company ("Developments"). The Contractor, to
the extent that Contractor 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 Contractor's right, title and interest in and to any and all of the
Developments ("Assignment"). During the period commencing upon the day
after the Contractor's last day performing services for the Company and
ending one year after termination of the Contractor's engagement with the
Company, at the reasonable request of the Company, the Contractor 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 Contractor is compensated at no less that a
rate of $250 per hour for Contractor's time.
(a) LIMITATION ON SECTION 7(a) - The provisions of Section 7 shall not
apply to any Development meeting the following conditions: (i) such
Development was developed entirely on the Contractor'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 Contractor for the Company.
(b) COPYRIGHTABLE MATERIAL - All right, title and interest in all
copyrightable material that the Contractor 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 Contractor, the
Contractor shall execute all papers and perform all other acts necessary to
assist the Company to obtain and register copyrights on such materials in
any and all countries, except that Contractor shall be compensated at no
less that a rate of $250 per hour for Contractor's time for compliance with
this provision following termination or expiration of this Agreement. Where
applicable, works of authorship created by the Contractor for the Company
in performing Contractor'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.
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(c) KNOW-HOW AND TRADE SECRETS - All know-how and trade secret
information conceived or originated by the Contractor that arises out of
the performance of Contractor'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; GROUNDS FOR TERMINATION - The Contractor'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 Contractor dies, (ii) The Board elects to terminate this Agreement
for "cause" and notifies the Contractor in writing of such election, (iii)
The Board elects to terminate this Agreement without "cause" and notifies
the Contractor in writing of such election, (iv) The Contractor elects to
terminate this Agreement and notifies the Company in writing of such
election, or (v) The Contractor 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" DEFINED - "Cause" means: (i) The Contractor has breached
the provisions of Section 5, 6 or 7 of this Agreement in any material
respect, (ii) The Contractor has engaged in willful and material
misconduct, including willful and material failure to perform the
Contractor's duties as an officer or Contractor 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 Contractor has committed fraud,
misappropriation or embezzlement in connection with the Company's business,
or (iv) The Contractor 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 Contractor, in consideration of Contractor'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
Contractor's engagement.
(d) SURRENDER OF RECORDS AND PROPERTY - Upon termination of
Contractor's engagement with the Company, the Contractor 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 Contractor's possession or under Contractor's control.
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(e) PAYMENT CONTINUATION - If the Contractor's engagement by the
Company is terminated by the Company pursuant to clause (iii) of Section
8(a) or by Contractor for Good Reason pursuant to clause (v) of Section
8(a), the Company shall continue to pay to the Contractor Contractor's base
payment (less any payments received by the Contractor from any disability
income insurance policy provided to Contractor by the Company) and shall
continue to provide health insurance benefits for the Contractor through
the earlier of (a) the date that the Contractor has obtained other
full-time engagement, or (b) three (3) months from the date of termination
of engagement. If this Agreement is terminated pursuant to clauses (i),
(ii) or (iv) of Section 8(a), the Contractor's right to base payment and
benefits shall immediately terminate, except as may otherwise be required
by applicable law.
(f) "GOOD REASON" DEFINED - Good Reason shall mean: (i) the assignment
of the Contractor to any duties inconsistent in any respect with the
Contractor'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 Contractor; (ii) any
termination or reduction of a material benefit under any benefits plan in
which the Contractor 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
Contractors 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.
9. INDEMNIFICATION - In the event that Contractor is made, or threatened to be
made, a party to any action or proceeding, whether civil or criminal, by
reason of the fact that Contractor 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, Contractor benefit plan or other
enterprise in any capacity at the request of the Company, or resulting from
any of Contractor's actions in any of the foregoing roles Contractor shall
be indemnified by the Company and the Company shall advance Contractor'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 ByLaws as
incurred beginning 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
Contractor's or her 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.
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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) 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 (d),
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 Contractor, 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 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.
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(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
Contractor 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 Contractor shall constitute a waiver of any other right
or breach by the Contractor.
(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
Facsimile: 203-286-1608
Attn: , CEO
#207 - 54 Danbury Road
Ridgefield, CT 06877
If to the Contractor:
Ken Ducey, Jr.
President
Suite #204 - 90 Grove Street
Ridgefield, CT 06877
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 are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
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(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 Contractor 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.
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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. ASSET GROWTH COMPANY
By: Robert Tarini By: Ken Ducey
CEO President
/s/ Robert Tarini /s/ Ken Ducey, Jr.
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Date: 12-30-2004 Date: 12-30-2004