EXHIBIT 10.8
EXECUTION COPY
SETTLEMENT AND RELEASE AGREEMENT
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This SETTLEMENT AND RELEASE AGREEMENT ("Agreement") is made as of the
13th day of August, 2007 (the "Effective Date"), by and between THE SAGEMARK
COMPANIES LTD. ("Sagemark") and TRIDENT ADVISORS, INC. ("Trident").
W I T N E S S E T H :
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WHEREAS, Sagemark and Trident entered into that certain Purchase
Agreement on November 9, 2005 (as amended, the "Purchase Agreement"), pursuant
to which Sagemark sold to Trident the 24.1% Limited Partnership Interest (the
"LP Interest") owned by Sagemark in Trident Growth Fund, L.P. ("Trident
Growth"), for a total purchase price of Two Million Five Hundred Seventy
Thousand Dollars ($2,570,000.00) (the "Purchase Price");
WHEREAS, pursuant to and upon the execution of the Purchase Agreement,
Trident paid to Sagemark Six Hundred Twenty-Five Thousand Dollars ($625,000.00)
and issued and delivered to Sagemark a Secured Promissory Note (the "Note") in
the principal amount of One Million Nine Hundred Forty Five Thousand Dollars
($1,945,000.00), which amount represented the then balance of the Purchase
Price;
WHEREAS, pursuant to the terms of the Note, Trident granted to Sagemark
a first priority lien and security interest (the "Security Interest") in the LP
Interest, as collateral security for Trident's obligation to make full and
timely payment of the principal amount of the Note and accrued interest thereon;
WHEREAS, Trident has paid Sagemark an additional amount of Seventy-Five
Thousand Dollars ($75,000.00) pursuant to the Note, as a result of which the
balance of such Purchase Price due to Sagemark as of the date hereof is One
Million Nine Hundred Eighty Six Thousand Four Hundred Seventy Eight Dollars
($1,986,478.00), inclusive of both principal and accrued interest thereon; and
WHEREAS, Trident has offered to pay to Sagemark, and Sagemark has
agreed to accept from Trident, the sum of One Million Dollars ($1,000,000.00)
(the "Discounted Purchase Price") in full and final payment of all amounts due
under the Note and in full and final satisfaction of all obligations of Trident
under the Purchase Agreement, all on and subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned do hereby agree as follows:
1. Incorporation by Reference. The terms of the Purchase
Agreement and the Note are incorporated herein by reference thereto. All
capitalized terms which are used but not defined herein shall have the meanings
ascribed to them in the Purchase Agreement and/or the Note.
2. Payment of Discounted Purchase Price. Notwithstanding any
provision of the Purchase Agreement or the Note to the contrary, by execution of
this Agreement, Trident agrees to pay, and Sagemark agrees to accept, in full
and final payment of all amounts due under the Note and in full and final
satisfaction of all obligations of Trident under the Purchase Agreement (except
as provided in this Agreement), the Discounted Purchase Price, payable as
follows:
a. Seven Hundred Seventy-Five Thousand Dollars
($775,000.00), payable contemporaneously with the
execution of this Agreement; and
b. Two Hundred Twenty-Five Thousand Dollars
($225,000.00), payable on or before October 31, 2007
(the "Deferred Payment").
All amounts payable to Sagemark hereunder shall be paid by wire transfer at:
Bank of America
ABA # [REDACTED]
For Further Credit To:
The Sagemark Companies Ltd.
Account # [REDACTED]
3. Termination of Security Interest. Trident hereby covenants not
to encumber the LP Interest prior to Sagemark's receipt of the Discounted
Purchase Price. Trident and Sagemark hereby agree that subject to and upon full
and final payment of the Discounted Purchase Price, (a) Sagemark's Security
Interest in the LP Interest shall be immediately and automatically terminated
and be of no further force or effect, and Sagemark hereby authorizes Trident and
any of its agents or representatives to prepare and file any Uniform Commercial
Code termination statements or such other documents and instruments as are
necessary to evidence such termination (copies to be provided to Sagemark); (b)
Sagemark shall promptly deliver any and all originals of the Note to Trident;
and (c) any and all debts and obligations of Trident under the Purchase
Agreement and/or the Note shall be immediately and automatically released
(except as provided in this Agreement).
4. Default. Notwithstanding any provision in the Purchase
Agreement and/or the Note to the contrary, in the event that Trident fails to
pay the Deferred Payment to Sagemark on or before October 31, 2007, all amounts
paid hereunder shall be applied to the then outstanding balance of the Note as
of the date of such payment, and the remaining outstanding balance under the
Note shall be accelerated and shall be immediately due and payable in accordance
with the provisions thereof.
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5. Mutual Releases.
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(a) In consideration of the covenants and agreements set
forth in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Sagemark, for itself
and its subsidiaries, successors-in-interest, representatives, agents and
assigns (collectively, the "Sagemark Releasors") hereby releases and discharges
Trident, Trident Growth, Trident Management, LLC, and their respective officers,
directors, shareholders, partners, employees, heirs, administrators, executors,
representatives, attorneys, subsidiaries, successors and assigns acting as such
(collectively, the "Trident Releasees"), from any and all claims, demands,
causes of action, actions, judgments, liens, indebtedness, costs, damages,
obligations, fees, losses and liabilities of whatever kind and character,
whether known or unknown, foreseen or unforeseen, in law or equity, liquidated
or unliquidated, whether asserted personally, derivatively or in any other
capacity (all of the foregoing being collectively referred to herein as the
"Claims"), arising at any time from the beginning of time through the Release
Effective Date (defined below), including but not limited to Claims arising in
connection with or in any way related to the Purchase Agreement or the Note, and
all activities, transactions and obligations arising thereunder, provided that
nothing contained herein shall release the Trident Releasees from:
(i) any claim of breach of any of Trident's
representations, warranties, covenants and/or obligations under this Agreement;
(ii) any claim under Section 5.3 of the Purchase
Agreement with respect to capital contribution obligations of Sagemark as set
forth therein; and
(iii) any Claims against any of the Trident
Releasees which cannot be released under applicable law.
Sagemark hereby (x) represents that none of the Sagemark Releasors have
instituted any action or suit against any of the Trident Releasees relating to
the Purchase Agreement or the Note, nor any activities, transactions and
obligations arising thereunder; and (y) covenants and agrees that none of the
Sagemark Releasors will institute any action or suit against any of the Trident
Releasees, nor in any way aid in the institution or prosecution of any such
action or suit by third parties, relating to the Purchase Agreement or the Note,
nor any activities, transactions and obligations arising thereunder. In the
event that the representation set forth in this paragraph is untrue, or the
covenant set forth in this paragraph is breached, Sagemark agrees to reimburse
those of the Trident Releasees which incur attorney's fees and/or costs in
connection with the defense of such actions or suits, their reasonable
attorney's fees and costs incurred in connection with the defense of such
actions or suits. Notwithstanding the foregoing, nothing contained in the
preceding paragraph (or elsewhere in this Agreement) will, or is intended to,
preclude or limit Sagemark from commencing an action to enforce its rights under
this Agreement.
(b) In consideration of the covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Trident, Trident
Growth, and Trident Management, LLC, for themselves and their respective
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subsidiaries, successors-in-interest, representatives, agents and assigns
(collectively, the "Trident Releasors") hereby releases and discharges Sagemark
and its officers, directors, shareholders, partners, employees, heirs,
administrators, executors, representatives, attorneys, subsidiaries, successors
and assigns acting as such (collectively, the "Sagemark Releasees"), from any
and all Claims arising at any time from the beginning of time through the
Release Effective Date including but not limited to Claims arising in connection
with or in any way related to the Purchase Agreement or the Note, and all
activities, transactions and obligations arising thereunder, provided that
nothing contained herein shall release the Sagemark Releasees from:
(i) any claim of breach of any of Sagemark's
representations, warranties, covenants and/or obligations under this Agreement;
and
(ii) any Claims against any of the Sagemark
Releasees which cannot be released under applicable law.
Trident hereby (x) represents that none of the Trident Releasors have instituted
any action or suit against any of the Sagemark Releasees relating to the
Purchase Agreement or the Note, nor any activities, transactions and obligations
arising thereunder; and (y) covenants and agrees that none of the Trident
Releasors will institute any action or suit against any of the Sagemark
Releasees, nor in any way aid in the institution or prosecution of any such
action or suit by third parties, relating to the Purchase Agreement or the Note,
nor any activities, transactions and obligations arising thereunder. In the
event that the representation set forth in this paragraph is untrue, or the
covenant set forth in this paragraph is breached, Trident agrees to reimburse
those of the Sagemark Releasees which incur attorney's fees and/or costs in
connection with the defense of such actions or suits, their reasonable
attorney's fees and costs incurred in connection with the defense of such
actions or suits. Notwithstanding the foregoing, nothing contained in the
preceding paragraph (or elsewhere in this Agreement) will, or is intended to,
preclude or limit Trident from commencing an action to enforce its rights under
this Agreement.
(c) The releases and covenants set forth in this Section
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set forth in Section 2(b) hereof (the "Release Effective Date").
6. Inconsistencies. To the extent there is any inconsistency
between the terms of the Purchase Agreement and/or the Note, and the terms of
this Agreement, the terms of this Agreement shall govern and control.
7. Representations of the Parties. All action on the part of
Sagemark and Trident necessary for the authorization, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, has been taken and this Agreement constitutes a valid and
legally binding obligation of Sagemark and Trident, enforceable in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws affecting generally the enforcement of
creditors' rights and by general principles of equity.
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8. Further Assurances. The parties hereto agree to execute and
deliver such instruments as are reasonably necessary to effectuate the
transactions contemplated by this Termination.
9. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Texas, excluding its conflicts of laws provisions.
10. Facsimile Execution; Multiple Originals. This Agreement may be
executed by facsimile signature, which shall be deemed an original, and in
multiple counterparts, all of which, together will constitute one and the same
document.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the day and year first above written.
ATTEST: THE SAGEMARK COMPANIES LTD.
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx, President and
Chief Executive Officer
Xxxxxx X. Xxxxxxx
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Print Name
ATTEST: TRIDENT ADVISORS, INC.
/s/ Xxxxx X. Xxxxx /s/ Xxxxx Xxxx
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Xxxxx X. Xxxxx Xxxxx Xxxx, President
Print Name
LIMITED JOINDER
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The undersigned hereby join in the execution of this Agreement solely
to evidence (a) their consent to the release provisions set forth in Section 5
of this Agreement, and (b) that they have received good and valuable independent
consideration in connection with such covenant.
ATTEST: TRIDENT GROWTH FUND, L.P.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxx
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Xxxxx X. Xxxxx Xxxxx Xxxx, General Partner
Print Name Print Name and Title
ATTEST: TRIDENT MANAGEMENT, LLC
/s/ Xxxxx X. Xxxxx /s/ Xxxxx Xxxx
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Xxxxx X. Xxxxx Xxxxx Xxxx, Managing Member
Print Name Print Name and Title
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