SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"), dated as of the 1st day of January,
2005 ("Effective Date"), by and among Advanced Communication Technologies, Inc.,
a Florida Corporation ("ACT" or the "Company".), Wayne I. Danson ("Executive")
and Danson Partners, LLC ("DPL").
WITNESSETH
WHEREAS, Executive is a principal of DPL and DPL provides Executive's
services to business organizations on a consulting basis; Executive presently
serves as President and Chief Financial Officer of ACT on such basis;
WHEREAS, in contemplation of closing certain acquisition transactions
contemplated by ACT, the parties wish to revise, modify and restate the
arrangement pursuant to which Executive serves as President and Chief Executive
Officer of ACT.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Engagement.
(a) DPL agrees to provide the services of Executive to ACT,
Executive agrees to perform such services, and ACT hereby engages DPL and
Executive to provide such services, all on the terms and conditions contained in
the Agreement.
(b) Executive shall serve as Chief Executive Officer, President and
Chief Financial Officer of ACT. In addition, ACT will take all necessary action
to cause Executive to continue as a member of ACT's Board of Directors ("the
Board") during the term of this Agreement, and if so elected, Executive shall
serve ACT as a director.
(c) In addition to his positions set forth in Paragraph (a),
Executive shall at the request of the Board serve as an officer or director of
any subsidiary or subsidiaries of ACT, without additional compensation and
subject to any policy of the Compensation Committee of the Board (the
"Compensation Committee") with regard to directors' fees.
2. Term. The initial term of this Agreement shall commence on the
Effective Date and expire on the second anniversary thereof (the "Engagement
Period"), unless earlier terminated in accordance with its terms.
3. Employment and Duties.
3.1. Duties and Responsibilities.
(a) Executive shall perform all duties and functions customary
for executives holding similar offices with similarly situated companies. In
addition, Executive shall perform such duties and accept such responsibilities
reasonably related to and consistent with his positions as may be directed or
assigned by the Board. The Executive shall report solely to the Board and its
committees.
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(b) During the Engagement Period, Executive shall serve ACT
faithfully and to the best of his ability; to use his best efforts to carry out
his duties and responsibilities and shall devote such working time, attention
and energy to his services for the Company and the benefit and business of the
Company as shall be reasonably required; and shall use his best efforts, skills
and ability to promote its interests and to perform such duties as from time to
time may be reasonably assigned to him and are consistent with his titles and
positions with the Company. The parties acknowledge that Executive is engaged in
other consulting and business activities on behalf of DPL and otherwise;
however, Executive is required to devote a minimum of forty (40) hours per week
to his duties on behalf of the Company. Executive shall use reasonable efforts
to be available as and at all times when the Company requires his services and
to avoid engagements which could materially impair his ability to perform all
services necessary to fulfill his duties under this Agreement. The hiring of any
employee or independent contractor to perform any of the services currently
perform by Executive/DPL hereunder shall require the prior approval of the
Company's Board.
(c) During the Engagement Period, in addition to any other
duties or responsibilities the Company gives to Executive, Executive shall be
required to sign, and shall sign, all certifications and such other documents or
instruments required of the Chief Executive Officer (unless the Company engages
another individual as Chief Executive Officer) and/or a Chief Financial Officer
of a public company or otherwise by (i) the Securities and Exchange Commission,
(ii) any exchange or association on which the Company's shares of capital stock
are listed, (iii) any federal, state or local authority, (iv) any other
governmental, quasi-governmental or non-governmental entity or organization
(foreign or domestic) that regulates or has authority over the Company, and/or
(v) the Company in connection with any of the foregoing.
3.2. Observance of Rules and Regulations. Executive agrees to
observe and comply with all rules and regulations of the Company with respect to
the performance of his duties.
4. Compensation; Expenses; Relationship.
4.1 Base Fee. As compensation for the services to be rendered
hereunder by Executive, during the Engagement Period the Company shall pay to
DPL an annual base fee (the "Base Fee") of $250,000. The Base Fee shall be
payable in equal monthly installments of $20,833 per month.
4.2. Fixed Bonus. DPL shall receive (i) a cash bonus of $250,000,
including the $50,000 paid in July 2004 and $75,000 paid in January 2005, with
the remaining $125,000 to be earned as of August 1, 2005 and paid on or before
August 31, 2005. In addition, DPL shall receive a share bonus of 200,000,000
shares of ACT's restricted common stock contemporaneously with the execution of
this Agreement. All shares shall be fully vested upon issuance.
4.3. Discretionary Bonus Compensation.
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(a) For each fiscal year or portion thereof after the
Effective Date and during the Engagement Period, the Company may pay to DPL an
annual performance bonus, in cash and/or restricted stock of ACT, in an amount
determined at the sole discretion of the Compensation Committee, taking into
account such factors as it considers appropriate, including but not necessarily
limited to, Executive's contribution to ACT's consolidated net earnings and
stock appreciation during such fiscal year (the "Performance Bonus").
(b) In addition to the Performance Bonus, the Company may
grant cash bonuses, restricted shares of common stock of ACT, or options to DPL
in consideration for Executive's services, with a vesting schedule and other
terms established by the Compensation Committee in its sole discretion (the
"Incentive Bonus").
(c) DPL acknowledges that the granting, and the amount, of any
Performance Bonus and Incentive Bonus, or either of them, shall at all times be
determined by the Compensation Committee in its sole discretion and without
obligation. The Company shall pay any Performance Bonus and Incentive Bonus
granted to DPL within thirty (30) days after the Company's audited results for
the applicable fiscal year are delivered to the Company, but in no event later
than October 15 of the immediately following fiscal year, unless otherwise
agreed by the parties.
4.4. Life Insurance.
(a) During the Engagement Period, the Company shall provide
term life insurance on the life of Executive with a death benefit equal to
$2,000,000. The Company shall pay all premiums with respect to such life
insurance. DPL, or its designee, shall at all times be the beneficiary of such
life insurance.
(b) In addition to Section 4(a) above, the Company shall
maintain "key man" life insurance on the life of Executive with a death benefit
equal to $2,000,000. The Company shall pay all premiums with respect to such
life insurance. The Company shall at all times be the beneficiary of such "key
man" life insurance.
4.5. Other Benefits. As Executive is not an employee of the Company,
Executive generally shall not be eligible to participate in any life and health
insurance programs or other so-called "fringe benefit programs" that the Company
makes available to all of its executives of similar seniority.
4.6. Business Expenses. Executive and/or DPL will be reimbursed, in
accordance with the Company's expense reimbursement policy, for business
expenses that have been pre-approved by the Board upon presentation of vouchers
or other documents reasonably necessary to verify the expenditures and
sufficient, in form and substance, to satisfy Internal Revenue Service
requirements for such expenses.
4.7. No Withholding. The Company will not withhold from the fees paid to
DPL pursuant to this agreement any sum for income tax, unemployment insurance,
Social Security or any other withholding generally applicable to compensation
paid to employees pursuant to any law or requirement of any governmental body.
DPL will determine and submit such reports and returns, make any necessary
payments and maintain any records in connection with the fees paid to it and
compensation paid by DPL to executive, as may be required by any local, state or
federal government or agency thereof. The Company will provide to DPL reports on
Form 1099, as required by federal law, and analogous forms, if any, applicable
to state tax, with respect to any amounts paid to DPL pursuant to of this
Agreement.
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4.8. Relationship. The parties hereto do not intend to create hereby any
partnership or joint venture between themselves with respect to the subject
matter hereof. No relationship of "employer" and "employee" is created by this
Agreement. It is specifically understood and agreed that DPL has been engaged by
ACT hereunder as an independent contractor, and that the appropriate
relationship between DPL and Executive shall be determined by them, and ACT has
no responsibility for such determination.
4.9. Director's Services. Executive is currently acting as a director on
Company's Board. Neither DPL nor Executive shall be separately compensated for
Executive's director services, and Executive's director services shall be deemed
fully compensated by the compensation provided to DPL and/or Executive
hereunder.
5. No Competitive Activities; Confidentiality; Invention
5.1. General Restriction. During the Engagement Period, and for a period
of two (2) years thereafter, DPL and Executive each covenants and agrees that,
except on behalf of the Company, it or he will not, directly or indirectly:
(a) Competing Business. Own, manage, operate, control, participate
in the ownership, management, operation or control of, be employed by, or
provide services as a consultant to, any individual or business that is involved
in business activities that are the same as, similar to or in competition with,
directly or indirectly, with any business activities conducted, or actively
being planned, by the Company during the Restricted Period (it being
acknowledged that the Company's business is national in scope). The ownership of
less than five percent (5%) of the outstanding stock of any public corporation
shall not be deemed a violation of this provision.
(b) Soliciting Customers. Attempt in any manner to contact or
solicit any individual, firm, corporation or other entity (i) that is or has
been, a customer of the Company at any time during the Engagement Period, (ii)
to which a proposal has been made by the Company during the Engagement Period or
(iii) appearing on the Company's new business target, as such list has been
prepared and maintained in accordance with the Company's past practice, for the
purpose of providing services or products similar to the services and products
provided by the Company, or engaging in any activity which could be, directly or
indirectly, competitive with the business of the Company.
(c) Interfering with Other Relations. Persuade or attempt to
persuade any supplier, vendor, licensor or other entity or individual doing
business with the Company to discontinue or reduce its business with the Company
or otherwise interfere in any way with the business relationships and activities
of the Company.
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(d) Employees. Attempt in any manner to solicit any individual, who
is at the time of such attempted solicitation, or at any time during the one (1)
year period preceding the termination of Executive's service, an employee or
consultant of the Company, to terminate his or her employment or relationship
with the Company, or engage such individual, as an employee or consultant.
Cooperate with any other person in persuading, enticing or aiding, or attempting
to persuade, entice or aid, any employee of or consultant to the Company to
terminate his or her employment or business relationship with the Company, or to
become employed as an employee or retained as a consultant by any person other
than the Company
(e) Exceptions. Nothing in paragraphs (a) through (d) shall prohibit
DPL or Executive from providing tax accounting, financial accounting or tax
consulting services to any business or person. Nothing in paragraph (d) shall
prohibit DPL or Executive from engaging in any business relationship with Martin
Nielson, Altos Bancorp, Inc and Altos Growth Corporation which is not in
violation of Martin Nielson's employment agreement with ACT or its subsidiaries,
or any agreement between either of such corporation and ACT.
5.2. Confidentiality Agreement. DPL and Executive shall not, either during
the Engagement Period or at any time thereafter, use or disclose to any third
person any Confidential Information of the Company, other than at the direction
of the Company, or pursuant to a court order or subpoena, provided that
Executive will give notice of such court order or subpoena to the Company prior
to such disclosure. Upon the termination of Executive's service with the Company
for any reason, Executive shall return any notes, records, charts, formulae or
other materials (whether in hard copy or computer readable form) containing
Confidential Information, and will not make or retain any copies of such
materials. Without limiting the generality of the foregoing, the parties
acknowledge that the Company from time to time may be subject to agreements with
its customers, suppliers or licensors to maintain the confidence of such other
persons' confidential information. The terms of such agreements may require that
the Company's employees, consultants, contractors and other personnel, including
Executive, be bound by such agreements, and Executive shall be deemed so bound
upon notice to him of the terms of such agreements. The term "Confidential
Information" as used herein shall mean any confidential or proprietary
information of the Company whether of a technical, engineering, operational,
financial or economic nature, including, without limitation, all prices,
discounts, terms and conditions of sale, trade secrets, know-how, customers,
inventions, business affairs or practices, systems, products, product
specifications, designs, plans, manufacturing and other processes, data, ideas,
details and other information of the Company. Confidential Information shall not
include information which can be proven by Executive to have been developed by
his own work as of the Effective Date completely independent of its disclosure
by the Company or which is in the public domain, provided such information did
not become available to the general public as a result of Executive's breach of
this Paragraph 5.2.
5.3. Disclosure of Innovations. Executive shall make prompt and full
disclosure to the Company and solely the Company of all writings, inventions,
processes, methods, plans, developments, improvements, procedures, techniques
and other innovations of any kind that Executive may make, develop or reduce to
practice, alone or jointly with others, at any time during the Engagement Period
and for a period of one (1) year thereafter, whether during working hours or at
any other time and whether at the request or upon the suggestion of the Company
or otherwise, and whether or not they are eligible for patent, copyright,
trademark, trade secret or other legal protection (collectively, "Innovations").
Examples of Innovations shall include, but are not limited to, discoveries,
research, formulas, tools, know-how, marketing plans, new product plans,
production processes, advertising, packaging and marketing techniques and
improvements to computer hardware or software.
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5.4. Assignment of Ownership of Innovations. All Innovations shall be the
sole and exclusive property of the Company. Executive hereby assigns all rights,
title or interest in and to the Innovations to the Company. At the Company's
request and expense, during the Engagement Period and at any time thereafter,
Executive will assist and cooperate with the Company in all respects and will
execute documents and give testimony to obtain, maintain, perfect and enforce
for the Company any and all patent, copyright, trademark, trade secret and other
legal protections for the Innovations.
5.5. Remedies. Executive acknowledges that the restrictions contained in
the foregoing paragraphs 5.1 through 5.4, in view of the nature of the business
in which the Company is engaged, are reasonable and necessary in order to
protect the legitimate interests of the Company, and that the legal remedies for
a breach of any of the provisions of this section 5 will be inadequate and that
such provisions may be enforced by restraining order, injunction, specific
performance or other equitable relief. Such equitable remedies shall be
cumulative and in addition to any other remedies which the injured party or
parties may have under applicable law, equity, this Agreement or otherwise.
Executive shall not, in any action or proceeding to enforce any of the
provisions of this Paragraph 5, assert the claim or defense that an adequate
remedy at law exists. The prevailing party shall be entitled to recover its
legal fees and expenses in any action or proceeding for breach of this section
5.
5.6. Company Property. All Confidential Information; all Innovations; and
all correspondence, files, documents, advertising, sales, manufacturers' and
other materials or articles or other information of any kind, in any media, form
or format furnished to Executive by the Company, which may not deemed
confidential, shall be and remain the sole property of the Company ("Company
Property"). Upon termination or at the Company's request, whichever is earlier,
Executive shall immediately deliver to the Company all such Company Property.
5.7. Public Policy/Severability. The parties do not wish to impose any
undue or unnecessary hardship upon Executive following his departure from the
Company's service. The parties have attempted to limit the provisions of this
section 5 to achieve such a result, and the parties expressly intend that all
provisions of this section 5 be construed to achieve such result. If, contrary
to the effort and intent of the parties, any covenant or other obligation
contained in this section 5 shall be found not to be reasonably necessary for
the protection of the Company, to be unreasonable as to duration, scope or
nature of restrictions, or to impose an undue hardship on Executive, then it is
the desire of the parties that such covenant or obligation not be rendered
invalid thereby, but rather that the duration, scope or nature of the
restrictions be deemed reduced or modified, with retroactive effect, to render
such covenant or obligation reasonable, valid and enforceable. The parties
further agree that in the event a court, despite the efforts and intent of the
parties, declares any portion of the covenants or obligations in this section 5
invalid, the remaining provisions of this section 5 shall nonetheless remain
valid and enforceable.
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6. Termination.
6.1. Termination For Cause. Notwithstanding anything to the contrary
contained herein, this Agreement may be terminated prior to the expiration of
the Engagement Period upon seven (7) days' prior written notice from the Company
to DPL and Executive for "cause," at which time the Company shall have no
further obligations or liabilities to DPL or Executive whether under this
Agreement or otherwise and DPL and Executive's right to further compensation and
benefits hereunder shall immediately cease, other than payment of Base Fees
accrued, and reimbursement of expenses incurred in accordance with Paragraph
4.6, prior to the effective date of termination of this Agreement (the
"Termination Date"). As used herein and throughout this Agreement, the term
"cause" shall mean (i) any act or omission by Executive that constitutes
malfeasance, misfeasance or nonfeasance in the course of Executive's duties
hereunder, or in the judgment of the Board, Executive has been grossly negligent
(including habitual neglect of duties), incompetent or insubordinate in carrying
out his duties hereunder, (ii) a material breach of this Agreement by DPL or
Executive that is not cured within ten (10) days of receipt of notice thereof,
(iii) Executive's or DPL's breach of a fiduciary duty owed to the Company or its
affiliates, or (iv) Executive's or DPL's conviction of, or pleading nolo
contendere to, a criminal offense or crime constituting a misdemeanor or felony,
or conviction in respect to any act involving fraud, dishonesty or moral
turpitude (other than minor traffic infractions or similar minor offenses).
6.2. Termination Without Cause or for Good Reason.
(a) Without Cause. This Agreement may be terminated by the Company
without cause and for any reason or no reason prior to the expiration of the
Engagement Period upon thirty (30) days' prior written notice from the Company
to DPL and Executive.
(b) Good Reason. This Agreement may be terminated upon seven (7)
days' prior written notice from the DPL or Executive to the Company for "Good
Reason," which notice must be given within thirty (30) days after the occurrence
of the event giving rise to the "Good Reason." As used herein, Good Reason shall
mean the occurrence of any of the following without Executive's consent: (i) a
material reduction in Executive's duties or authority, or a change in reporting
relationship which requires Executive to report to any person or persons other
than the Board or a Committee of the Board, ; (ii) a requirement which that
Executive be relocated to an office outside of the New York City metropolitan
area,; (iii) a reduction in Base Fees; (iv) or the Company is a party to a
merger or consolidation in which it is not the surviving entity, and the
surviving or new entity does not undertake to assume and perform the Company's
obligations under this Agreement.
(c) Compensation. In the event that the Company terminates this
Agreement without cause or Executive or DPL terminates for Good Reason (other
than in connection with a Change in Control as described in paragraphs (d) and
(e), below) , the Company shall pay to DPL any Base Fees accrued, expenses
incurred in accordance with Paragraph 4.6, prior to the Termination Date, and
any unpaid bonus fees owed for a prior fiscal year "Accrued Payments"), which
amounts, if any, shall be payable in cash to DPL in a lump sum no later than 30
days after the Termination Date. In addition, Company shall pay DPL an amount of
Base Fees which would have been payable to DPL during the twelve (12) month
period immediately following the Termination Date ("Severance Payment"). If
Executive or DPL terminates this Agreement for Good Reason, the Severance
Payment shall be paid in cash in a lump sum no later than 30 days after the
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Termination Date. If the Company terminates without cause, the Severance Payment
shall be payable in cash to Executive in equal monthly installments on the first
business day of each calendar month during the twelve (12) month period
immediately following the Termination Date. Except as provided in the preceding
sentence, the Company shall have no further obligations or liabilities to
Executive whether under this Agreement or otherwise and Executive's right to
further compensation and benefits hereunder (including, but not limited to,
unvested stock) shall immediately cease. (d) In the event that within three
months prior to, or twelve months following, a Change in Control (as defined
below), the Company terminates this Agreement without cause, including the
Company's refusal or failure to renew for at least one year upon expiration of
an Engagement Term occurring during such time period), or DPL or Executive
terminates this Agreement for Good Reason under clause (iii) or (iv) of
paragraph 6.2(b), the Severance Payment shall be shall be increased to an amount
which, when added to the Base Fees paid to DPL from the date of Change of
Control to the Termination Date, if any, equals 299% of the amount of Base Fees
which would have been payable to DPL during the twelve (12) month period
immediately following the Termination Date . In addition, upon a termination
described in this paragraph (d), all unvested stock options or stock awards held
by either DPL or Executive shall immediately become accelerated and vested. Any
payment due pursuant to this paragraph (d) shall be paid in a lump sum within 30
days of the last to occur of the termination or Change in Control.
The following are examples of the application of paragraph (d). All
examples assume a base salary of $250,000.
Example 1. The Company terminates this Agreement without cause on
January 1, 2006, and pays the January and February monthly Severance Payment of
$20,833 each month. On March 1, 2006, a Change in Control occurs. The Company
pays a lump sum of $705,834 [(299% x $250,000)-($41,666).
Example 2. The Company Terminates this Agreement without cause on
the same day as the Change in Control occurs. The Company pays a lump sum of
$747,500.
Example 3. A Change in Control occurs on August 1, 2006. Executive
continues to provide services and the Company continues to pay base salary
through December 31, 2006, the termination date of this Agreement. The Company
refuses to renew this Agreement for one year, after December 31, 2006. The
Company pays a lump sum of $643,335 [(299% x $250,000 - (5 x $20,833)].
Example 4. A Change in Control occurs August 1, 2005. The Company
terminates without cause on September 1, 2006. Because this is more than 12
months after the Change in Control, the Company pays only the ordinary Severance
Payment, which is paid monthly for 12 months thereafter.
(e) As used in this Agreement, "Change in Control" means any
one of the following:
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(i) Any "person" as such term is used in Sections
13(d) and 14(d) of Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than (i) the Company, (ii) the officers and directors of the
Company on the date of this Agreement, (iii) any trustee or other fiduciary
holding securities under an Executive benefit plan of the Company, (iii) any
company owned, directly or indirectly, by the share owners of the Company in
substantially the same proportions as their ownership of stock of the Company),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
twenty five percent (25%) or more of the combined voting power of the Company's
then outstanding securities;
(ii) The share owners of the Company approve a
merger or consolidation of the Company with any other company, other than (1) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or (2) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as defined in subsection (i) above) acquires more than 50% of the
combined voting power of the Company's then outstanding securities; or
(iii) The share owners of the Company approve a plan
of liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
(iv) The Current Director Group constitute less than
50% of the members of the Board. The term "Current Director Group" as used
herein shall mean any person who is a member of the Board on the effective date
and/or any other person (a) who is appointed a director of ACT by action of the
Board with the approval of a majority of the Current Director Group then serving
on the Board, in their capacities as directors, including members of the Board
appointed under this clause (a) and the following clause (b), or (b) who is
nominated for election as a director of ACT by action of the Board with the
approval of a majority of the Current Director Group then serving as directors
of ACT, in their capacities as directors, including members of the Board
appointed under the preceding clause (a) or this clause (b).
Notwithstanding the foregoing, a Change in Control shall not include any
transaction under subparagraphs (ii) or (iii) unless Executive and DPL have
voted their shares of the Company against such transaction, or any triggering
change in the Current Director Group under subparagraph (iv), unless Executive,
as a Director, shall not have had a vote with respect to, or shall have voted
against, the members whose addition to the Board subsequent to the effective
date causes the Current Director Group to "constitute less 50% of the members of
the Board."
6.3. Termination of Other Positions. Upon the Termination Date, Executive
hereby resigns from all positions as officer, director or employee Executive may
then hold with the Company or its subsidiaries, and as fiduciary of any benefit
plan of the Company. Executive shall promptly execute any further documentation
as requested by the Company and, if Executive is to receive any payments from
the Company, execution of such further documentation shall be a condition
thereof.
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7. Disability or Death.
7.1. Disability. If, during the Engagement Period, Executive becomes
disabled or incapacitated as determined under the Company's Long Term Disability
Policy, whether or not such Policy covers Executive ("Permanently Disabled"),
the Company shall have the right at any time thereafter (but in no event less
than 120 days after the event causing such disability or incapacity), so long as
Executive is then still Permanently Disabled, to terminate this Agreement upon
thirty (30) days' prior written notice to DPL. In the event the Company does not
have a Long Term Disability Policy at the time of the event causing the
Executive to become Permanently Disabled, "Permanently Disabled" shall mean
Executive's inability to fully perform his duties and responsibilities hereunder
to the full extent required by the Company by reason of illness, injury or
incapacity for 120 consecutive days or for more than six (6) months during any
twelve (12) month period. If the Company elects to terminate this Agreement in
the event that Executive becomes Permanently Disabled, the Company shall have no
further obligations or liabilities to DPL or Executive, whether under this
Agreement or otherwise, other than payment to DPL of the Accrued Payments, which
Accrued Payments shall be paid to DPL in accordance with Section 6.2.
7.2. Death. If Executive dies during the Engagement Period, this Agreement
shall automatically terminate as of the date of Executive's death, and the
Company shall have no further obligations or liabilities to DPL or Executive,
whether under this Agreement or otherwise, other than payment of the Accrued
Payments, which Accrued Payments shall be paid to DPL in accordance with Section
6.2.
8.Indemnification. Each of the Company, on one hand, and DPL and Executive
on the other, shall indemnify the other for any losses, damages, liabilities,
judgments, claims, costs, penalties and expenses incurred by such other party
(including, without limitation, costs and reasonable attorneys' fees and costs),
resulting from the indemnifying party's failure to perform any of their
obligations contained in this Agreement. The Company shall be obligated to
indemnify Executive and DPL against those liabilities incurred in connection
with any proceeding to which either is made a party as the result of Executive's
performing his duties hereunder solely in accordance with, and as permitted by,
the Company's articles of incorporation. As soon as practicable, Company shall
use commercially reasonable efforts to obtain directors' and officers' insurance
in amounts equal to amounts maintained by publicly companies similarly situated
to that of ACT.
9.Governing Law. This Agreement shall be governed by the internal laws of
the State of New York. Any action to enforce any term hereof shall be brought
exclusively within the state or federal courts of New York to which jurisdiction
and venue all parties hereby submit themselves.
10. Binding Effect. Except as otherwise herein expressly provided, this
Agreement shall be binding upon, and shall inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors and assigns.
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11. Assignment. Any assignee of the Company shall have the right to
enforce the restrictive covenants set forth in this Agreement, and the Company
shall have the right to assign this Agreement and the right to enforce such
covenants to any successor or assign of the Company.
12. Notices. All notices, designations, consents, offers, acceptances,
waivers or any other communication provided for herein, or required hereunder,
shall be sufficient if in writing and if sent by registered or certified mail,
return receipt requested, overnight courier, or delivered by hand to (i)
Executive at his last known address on the books of the Company or (ii) the
Company at its principal place of business.
13. Additional Documents. Each of the parties hereto agrees to execute and
deliver, without cost or expense to any other party, any and all such further
instruments or documents and to take any and all such further action reasonably
requested by such other of the parties hereto as may be necessary or convenient
in order to effectuate this Agreement and the intents and purposes thereof.
14. Counterparts. This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and such counterparts may
be delivered by facsimile transmission, which facsimile copies shall be deemed
originals.
15. Entire Agreement. This Agreement contains the sole and entire
agreement and understanding of the parties and supersedes any and all prior
agreements, discussions, negotiations, commitments and understandings among the
parties hereto with respect to the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or written,
between or among the parties concerning the subject matter hereto, which are not
fully expressed herein or in any supplemental written agreements of even or
subsequent date hereof.
16. Severability. If any provision of this Agreement, or the application
thereof to any person or circumstances, shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
17. Modification. This Agreement cannot be changed, modified or discharged
orally, but only if consented to in writing by all parties.
18. Contract Headings. All headings of the Paragraphs of this Agreement
have been inserted for convenience of reference only, are not to be considered a
part of this Agreement, and shall in no way affect the interpretation of any of
the provisions of this Agreement.
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19. Waiver. Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
20. Representation of Executive. Executive, with the full knowledge that
the Company is relying thereon, represents and warrants that he has not made any
commitment inconsistent with the provisions hereof and that he is not under any
disability which would prevent him from entering into this Agreement and
performing all of his obligations hereunder.
21. Joint Participation in Drafting. Each party to this Agreement
participated in the drafting of this Agreement. As such, the language used
herein shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party to this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
DANSON PARTNERS, LLC.
By: s/s Wayne I. Danson
------------------------------
Name: Wayne I. Danson
Title: Authorized Signer
ADVANCED COMMUNICATIONS TECHNOLOGIES,
INC.
By: s/s Randall Prouty
------------------------------
Name: Randall Prouty
Title: Chairman - Compensation Committee
EXECUTIVE:
s/s Wayne I. Danson
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