Consultant Agreement - Markland Technology Inc. and Verdi Consulting
CONSULTANT AGREEMENT
CONSULTANT AGREEMENT (this "AGREEMENT") dated as of May 12, 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 Verdi Consulting, (the "CONSULTANT"),
located in East Greenwich, Rhode Island, 02818.
WHEREAS, the Company and Consultant had previously entered into an
employment agreement dated January 1, 2003 (the "PRIOR AGREEMENT"); and
WHEREAS, the Company wishes to employ the CONSULTANT to render services
for the Company on the terms and conditions set forth in this Agreement, and the
Consultant wishes to be retained and employed by the Company on such terms and
conditions; and
WHEREAS, to accomplish the foregoing, the Company and Consultant 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 employs the Consultant, and the
Consultant 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 Consultant'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.
3. POSITION AND DUTIES
(a) SERVICE WITH COMPANY - During the term of the Consultant's
engagement, the Consultant agrees to perform such reasonable services as the
Board of Directors of the Company (the "BOARD") shall assign to Consultant from
time to time. The Consultant shall commence as a business development and
financing consultant..
(b) PERFORMANCE OF DUTIES - The Consultant agrees to serve the Company
faithfully and to the best of Consultant's ability and to devote a reasonable
amount of time, attention and efforts to the business and affairs of the Company
during Consultant's engagement by the Company. The Consultant hereby confirms
that Consultant is under no contractual commitments inconsistent with
Consultant's obligations set forth in this Agreement and that during the term of
<PAGE>
this Agreement, Consultant will not render or perform services for any other
corporation, firm, entity or person, which are inconsistent with the provisions
of this Agreement. While Consultant remains employed by the Company, the
Consultant may participate in reasonable professional, charitable, and/or
personal investment activities so long as such activities do not interfere with
the performance of Consultant's obligations under this Agreement.
4. COMPENSATION
(a) BASE CONSIDERATION - As compensation for services to be rendered by
the Consultant under this Agreement, the Company shall pay to the Consultant
during the term of the contract a base payment of $25,000.00 gross per month
(total of $300,000 per year, the "ANNUAL SALARY"), 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
Consultant 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 Consultant's services.
(c) EXPENSES- The Company will pay or reimburse the Consultant for all
reasonable and necessary out-of-pocket expenses incurred by Consultant in the
performance of Consultant's duties under this Agreement, subject to the
Company's normal policies for expense verification. In addition, Company agrees
to provide Consultant with up to $5,000 monthly for auto expense, business
office expense, medical and life insurance expenses.
(d) INITIAL GRANT OF STOCK - The company agrees to CONDITIONALLY grant
to Consultant shares of common stock in the Company (the "COMMON STOCK") at
seven different periods: (i) the first ("GRANT ONE") being upon the conclusion
of a 90 day period following the Effective Date, (ii) the second ("GRANT TWO")
being upon the conclusion of a 180 day period following the Effective Date,
(iii) the third ("GRANT THREE") being upon the conclusion of a 210 day period
following the Effective Date, (iv) the fourth ("GRANT FOUR") being upon
conclusion of a 1 year period following the Effective Date , the fifth ("GRANT
FIVE") being upon conclusion of a 2 year period following the Effective Date,
the sixth ("GRANT SIX") being upon conclusion of a 3 year period following the
Effective Date and the seventh the ("GRANT SEVEN") being upon conclusion of a 4
year period following the Effective Date (Grant One, Grant Two, Grant Three,
Grant Four, Grant Five, Grant Six and Grant Seven may be referred to as "GRANT"
or "GRANTS"). Each Grant shall be equivalent to a "STOCK PERCENTAGE" of the
Common Stock Equity of the Company (defined below) calculated as of the "FINAL
DATE" associated with that Grant, as follows:
-2-
<PAGE>
-------------------------- --------------------------- -------------------------
GRANT STOCK PERCENTAGE FINAL DATE
-------------------------- --------------------------- -------------------------
Grant One 2.5 April 1, 2004
-------------------------- --------------------------- -------------------------
Grant Two 1.00% July 1, 2004
-------------------------- --------------------------- -------------------------
Grant Three 1.00% Oct 1, 2004
-------------------------- --------------------------- -------------------------
Grant Four 1.0% January 2, 2005
-------------------------- --------------------------- -------------------------
Grant Five 1% January 2, 2006
-------------------------- --------------------------- -------------------------
Grant Six .5% Janaury 2, 2007
-------------------------- --------------------------- -------------------------
Grant Seven .5% Janaury 2, 2008
-------------------------- --------------------------- -------------------------
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 CONSULTANT MAY OPT TO ACCEPT OPTION GRANTS IN LIEU OF
RESTRICTED COMMON STOCK GRANTS ON A ONE FOR ONE BASIS. THE CONSULTANT MAY DO SO
AT EACH INDIVIDUAL GRANT DATE.
The number of shares of Common Stock reflected by the Stock Percentage
("Consultant's Shares") shall be calculated against all issued and outstanding
capital stock or other equity or conversion right in the Company inclusive of
warrants (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
Consultant'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
Consultant's Shares shall be made within fifteen days of the Final Date, in
accordance with the following formula ("Formula"):
Total # Consultant's Shares = applicable Stock Percentage x the Equity
The Equity = Company Equity outstanding as of the Final Date
+ number of Common Shares resulting from Imputed Conversion
-3-
<PAGE>
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 the Company 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 share grant are non transferable and
subject to forfeiture.
(e) Registration - All Consultant's Shares and Accrued Shares
(collectively hereafter referred to as "Consultant's Shares") may be
unregistered, unless registered prior to issuance.
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.
Consultant's Shares shall not contain the legend set forth above or any other
restrictive legend if all of the following conditions are satisfied: (i) there
is an effective Registration Statement under the Securities Act at such time,
(ii) the Consultant has delivered a certificate to the Company to the effect
that the Consultant will comply with all applicable prospectus delivery
requirements under the Securities Act in any sale or transfer of the
Consultant's Shares by the Consultant, and (iii) the Consultant has delivered to
the Company an opinion of counsel (acceptable to the Company) that such legend
is not required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the
Commission). The Company agrees that it will provide the Consultant, upon
request, with a certificate or certificates representing Consultant's Shares,
free from such legend at such time as such legend is no longer required
hereunder. The Company may not make any notation on its records or give
instructions to any transfer agent of the Company which enlarge the restrictions
of transfer set forth in this Section.
The Company covenants that it will take such further action as any holder of
Consultant Shares may reasonably request, all to the extent required from time
to time to enable such holder to sell the Shares without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
promulgated under the Securities Act, including the legal opinion of counsel to
the Company pursuant in a written letter to such effect, addressed and
acceptable to the Company's transfer agent for the benefit of and enforceable by
the Consultant or successor in interest thereto. Upon the request of any such
holder, the Company shall deliver to such holder a written certification of a
duly authorized officer as to whether it has complied with such requirements.
-4-
<PAGE>
(f) REGISTRATION RIGHTS - In the event of a registration of Company
common stock following the Final Date, Consultant 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, Consultant 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 Consultant may, within a reasonable time,
elect to participate in such dilutive event under the terms thereof to maintain
Consultant's then current percentage interest in the Company.
(g) BONUS: Consultant 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 Consultant's annual salary.
(h) PERFORMANCE CRITERIA: For any quarter of the company's operation
the consultant 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
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 or President of the Company.
5. CONFIDENTIAL INFORMATION - Except as permitted or directed by the Company's
Board of Directors, during the term of Consultant's engagement or at any time
thereafter, the Consultant 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 Consultant has acquired or become acquainted with or will acquire or
become acquainted with prior to the termination of the period of Consultant's
engagement by the Company (including engagement by the Company or any affiliated
companies prior to the date of this Agreement) whether developed by Consultant
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
Consultant 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
-5-
<PAGE>
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 Consultant's engagement, the
Consultant 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
Consultant.
6. VENTURES - If, during the term of Consultant's engagement the Consultant 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 Consultant 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 Consultant as provided in this Agreement. The Consultant shall not
enter into any arrangement through which Consultant acquires or may acquire any
interest, direct or indirect, in any vendor or customer of the Company other
than Consultant.
7. Patent and Related Matters; Disclosure and Assignment - The Consultant 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
Consultant, 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 Consultant, to the extent that
Consultant 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 Consultant's right, title and interest
in and to any and all of the Developments ("Assignment"). During the period
commencing upon the day after the Consultant's last day performing services for
the Company and ending one year after termination of the Consultant's engagement
with the Company, at the reasonable request of the Company, the Consultant 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 Consultant is compensated at no less that a rate of $250
per hour for Consultant'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 Consultant'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 Consultant for the
Company.
-6-
<PAGE>
(b) COPYRIGHTABLE MATERIAL - All right, title and interest in all
copyrightable material that the Consultant 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 Consultant, the Consultant 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 Consultant
shall be compensated at no less that a rate of $250 per hour for Consultant's
time for compliance with this provision following termination or expiration of
this Agreement. Where applicable, works of authorship created by the Consultant
for the Company in performing Consultant'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 Consultant that arises out of the
performance of Consultant'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 Consultant'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
Consultant dies, (ii) The Board elects to terminate this Agreement for "cause"
and notifies the Consultant in writing of such election, (iii) The Board elects
to terminate this Agreement without "cause" and notifies the Consultant in
writing of such election, (iv) The Consultant elects to terminate this Agreement
and notifies the Company in writing of such election, or (v) The Consultant
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.
-7-
<PAGE>
(b) "CAUSE" DEFINED - "Cause" means: (i) The Consultant has breached
the provisions of Section 5, 6 or 7 of this Agreement in any material respect,
(ii) The Consultant has engaged in willful and material misconduct, including
willful and material failure to perform the Consultant's duties as an officer or
Consultant 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
Consultant has committed fraud, misappropriation or embezzlement in connection
with the Company's business, or (iv) The Consultant 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 Consultant, in consideration of Consultant'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 Consultant's engagement.
(d) SURRENDER OF RECORDS AND PROPERTY- Upon termination of Consultant's
engagement with the Company, the Consultant 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 Consultant's possession or under Consultant's
control.
(e) PAYMENT CONTINUATION - If the Consultant's engagement by the
Company is terminated by the Company pursuant to clause (iii) of Section 8(a) or
by Consultant for Good Reason pursuant to clause (v) of Section 8(a), the
Company shall continue to pay to the Consultant Consultant's base payment (less
any payments received by the Consultant from any disability income insurance
policy provided to Consultant by the Company) and shall continue to provide
health insurance benefits for the Consultant through the earlier of (a) the date
that the Consultant 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
Consultant'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 Consultant to any duties inconsistent in any respect with the
Consultant'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
Consultant; (ii) any termination or reduction of a material benefit under any
benefits plan in which the Consultant 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
Consultants 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.
-8-
<PAGE>
9. INDEMNIFICATION - In the event that Consultant is made, or threatened to be
made, a party to any action or proceeding, whether civil or criminal, by reason
of the fact that Consultant 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, Consultant benefit plan or other enterprise in any
capacity at the request of the Company, or resulting from any of Consultant's
actions in any of the foregoing roles Consultant shall be indemnified by the
Company and the Company shall advance Consultant'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 Consultant'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.
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 Consultant, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity with or
-9-
<PAGE>
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.
(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 Consultant 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
Consultant shall constitute a waiver of any other right or breach by the
Consultant.
(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:
Ken Ducey, Jr.
Facsimile: 203-431-8309
Attn: President
#207 - 54 Danbury Road
Ridgefield, CT 06877
If to the Consultant:
Chad A Verdi
Verdi Consulting
100 Pheasant Drive
East Greenwich, RI 02818
Any party may change the address set forth above by notice to the other
party given as provided herein.
-10-
<PAGE>
(g) HEADINGS - The headings and any table of contents contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(h) GOVERNING LAW - ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW PROVISIONS THEREOF.
(i) VENUE; FEES AND EXPENSES - Any action at law, suit in equity or
judicial proceeding arising directly, indirectly, or otherwise in connection
with, out of, related to or from this Agreement, or any provision hereof, shall
be litigated only in the state courts located in the State of Connecticut,
County of Fairfield or the federal courts in the district which covers such
county. The Consultant 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.
ACCEPTED AND AGREED:
MARKLAND TECHNOLOGY, INC. Verdi Consulting
By: Robert Tarini. Chad A. Verdi
CEO
--------------------------------- -------------------------------
Date: Date:
----------------------- ---------------------------
-11-