EXHIBIT 99.1
PURCHASE AGREEMENT
AGREEMENT made as of the 18th day of September, 2001 by and between
SAGEMARK COMPANIES LTD., a New York corporation with offices at 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Sagemark") and TECHNOLOGY ACQUISITIONS
LTD., a Bermuda corporation with offices at c/o Benchmark Equity Group, Inc. 000
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("TAL").
W I T N E S S E T H :
WHEREAS, Sagemark is the owner of a 61.5% limited partnership interest
in Sagemark Capital, L.P., a Delaware limited partnership ("Sagemark Capital");
and
WHEREAS, TAL is the owner of 266,667 of the issued and outstanding
shares of common stock of Sagemark; and
WHEREAS, Sagemark desires to sell that portion of its limited
partnership interest in Sagemark Capital having an original investment value to
Sagemark of $2,000,000 and which represents 26.816% of the total limited
partnership interests in Sagemark Capital (the "Limited Partnership Interest"),
thereby retaining a 34.684% limited partnership interest therein; and
WHEREAS, Sagemark desires to transfer and sell the Limited Partnership
Interest to TAL in exchange for the shares of common stock of Sagemark owned by
TAL, and TAL is agreeable to so acquiring such Limited Partnership Interest, all
on and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Sale of the Limited Partnership Interest.
1.1. Sale and Purchase of the Limited Partnership Interest.
Upon and subject to the terms and conditions herein set forth, Sagemark hereby
agrees to sell the Limited Partnership Interest to TAL on the Closing Date
(hereinafter defined), and TAL hereby agrees to purchase the Limited Partnership
Interest from Sagemark on the Closing Date, for and in consideration of the
purchase price set forth in Section 1.2 hereof.
1.2. Purchase Price for the Limited Partnership Interest. In
consideration of the sale and transfer of the Limited Partnership Interest by
Sagemark to TAL on the Closing Date, TAL hereby agrees to transfer and deliver
to Sagemark on the Closing Date, an aggregate
of Two Hundred Sixty Six Thousand Six Hundred Sixty Seven (266,667) shares of
the common stock of Sagemark owned by it (the "Sagemark Shares"). To the extent
that there are any transfer or similar taxes or charges payable with respect to
the transfer of the Sagemark Shares to Sagemark, such payment will be the
responsibility of the party incurring such taxes, which charges will be paid at
the Closing (hereinafter defined) or otherwise when due.
2. The Closing.
2.1. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at 10:00 a.m. at the offices of
Xxxxxx X. Xxxxxx, Esq., 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000,
on the earlier of the date on which the Regulatory Approvals (hereinafter
defined) are obtained or November 30, 2001 (the "Closing Date"), or on such
earlier or later date or at such other location on which TAL and Sagemark may
mutually agree in writing.
2.2. Notwithstanding the foregoing provisions of Section 2.1
above, (a) in the event that the Regulatory Approvals have not been obtained by
November 30, 2001, either party may extend the Closing Date to the earlier of
the date upon which the Regulatory Approvals are obtained, or February 28, 2002
and (b) in the event that the Regulatory Approvals have not been obtained by
February 28, 2002, either party may terminate this Agreement in accordance with
the provisions of Section 10 hereof.
3. Representations and Warranties of Sagemark. Sagemark
represents and warrants to TAL, as follows:
3.1. Organization and Standing. Sagemark is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
New York, with full corporate power and authority to own, lease and operate its
properties and to carry on its business as presently conducted.
3.2. Authority; Binding Obligation. Sagemark has all requisite
power and authority necessary for, and has taken all required corporate action
with respect to, the authorization, execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby and this
Agreement, when executed and delivered by Sagemark, will constitute a valid and
legally binding obligation of Sagemark, 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.
3.3. Capitalization. The authorized capital stock of Sagemark
as of September 1, 2001, consists of 25,000,000 shares of Sagemark's common
stock, $.01 par value per share, and 2,000,000 shares of preferred stock, $1.00
par value per share. As of September 1, 2001, there were 1,590,247 shares of
Sagemark's common stock issued and outstanding (and 80,096
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treasury shares issued and held in treasury). To the best of Sagemark's
knowledge, the information set forth in Sagemark's Form 10QSB for the quarterly
period ended June 30, 2001, relating to Sagemark's outstanding shares of common
stock, options, warrants and convertible securities is materially accurate and
complete. To the best of Sagemark's knowledge, all issued and outstanding shares
of Sagemark's common stock have been duly authorized and validly issued, are
fully paid and non-assessable and free of preemptive rights.
3.4. No Conflict. Sagemark has the right, power, legal
capacity and authority to enter into and perform its obligations under this
Agreement and, except for any consent or approval of the United States Small
Business Administration (the "SBA"), which may be required, if any, and any
approval pursuant to the applicable provisions of the Partnership Agreement
(hereinafter defined), to the best of Sagemark's knowledge, no consent of any
third party is necessary with respect thereto. Neither the authorization,
execution, delivery and performance of this Agreement nor the consummation of
any of the transactions contemplated hereby will violate any provision of the
Certificate of Incorporation or the By-Laws of Sagemark or violate or be in
conflict with or constitute, with or without the passage of time or giving of
notice, either a default under any judgment, order, writ, decree, instrument,
document or other agreement to which Sagemark is a party or by which it is
bound, or an event which will create rights of acceleration, termination,
cancellation, default or loss of rights thereunder, or result in the creation of
any lien, claim, charge or encumbrance upon the Limited Partnership Interest or
the Remaining Limited Partnership Interest (hereinafter defined), except as to
any such consent or approval of the SBA or under the Partnership Agreement.
3.5. Ownership of Limited Partnership Interest. The Limited
Partnership Interest represents a 26.816% interest in Sagemark Capital. Sagemark
is the beneficial owner of the Limited Partnership Interest (and, to the best of
Sagemark's knowledge, it is the of record owner of the Limited Partnership
Interest) and Sagemark will sell and transfer the Limited Partnership Interest
to TAL on the Closing Date, free and clear of all liens, claims or encumbrances
of any kind. Upon and subject to the Closing, TAL will acquire the beneficial
ownership of the Limited Partnership Interest (and, to the best of Sagemark's
knowledge, the of record ownership of such interest), free and clear of all
liens, claims and encumbrances of any kind. To the best of Sagemark's knowledge,
based upon the terms and provisions of the Agreement of Limited Partnership of
Sagemark Capital dated November 30, 1999 (the "Partnership Agreement"), the
transfer to TAL of the Limited Partnership Interest is not subject to any
preemptive rights or rights of first refusal.
3.6. No Litigation. To the best of Sagemark's knowledge,
Sagemark is not subject to any injunction, writ, judgment, order or decree of
any court or governmental or other body which in any way relates to this
Agreement or the transactions contemplated hereby. Sagemark is not a party or
otherwise subject to any action, suit or proceeding in any way relating to this
Agreement or the transactions contemplated hereby nor, to the best knowledge of
Sagemark, is any such action, suit or proceeding threatened against Sagemark.
There is no
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action, suit or proceeding by Sagemark relating in any way to this Agreement or
the transactions contemplated hereby currently pending or which Sagemark intends
to initiate.
3.7. Investment Representation. Sagemark understands and
acknowledges that the Sagemark Shares have not been and will not be registered
under the Securities Act of 1933, as amended (the "Act"), and that resale of the
Sagemark Shares can only be made if registered or in accordance with applicable
exemptions or regulations under the Act. Sagemark is acquiring the Sagemark
Shares for its own account, for investment purposes only, and not with a view to
the resale or distribution thereof within the meaning of the Act.
3.8. Broker's or Finder's Fees. Sagemark has not engaged or
dealt with any broker, finder, or other person who is entitled to any brokerage
fee, commission or other compensation as a result of the execution of this
Agreement and/or the consummation of the transactions contemplated hereby.
3.9. Governmental Consent, etc. To the best of Sagemark's
knowledge, no consent, approval, order or authorization of or registration,
qualification, designation, declaration or filing with (the "Approvals") any
governmental authority on the part of Sagemark is required in connection with
the sale and transfer of the Limited Partnership Interest by Sagemark to TAL,
except for any Approvals that may be required by the SBA.
3.10. Exempt. Subject to the accuracy of TAL's representations
in Section 4 hereof, the sale and transfer of the Limited Partnership Interest
by Sagemark to TAL constitutes a transaction exempt from the registration
requirements of Section 5 of the Act.
3.11. No Default. To the best of Sagemark's knowledge,
Sagemark has performed, or is now performing, the material obligations of, and
Sagemark is not in material default (or would by the lapse of time and/or the
giving of notice be in material default) in respect of, any contract, agreement
or commitment binding upon it or its assets or properties and material to the
conduct of its business, which default would materially adversely affect the
transactions contemplated by this Agreement. No third party has notified
Sagemark of any material claim, dispute or controversy with respect to any of
the executory contracts of Sagemark, the breach of which would materially
adversely affect the transactions contemplated by this Agreement, nor has
Sagemark received notice of any material alleged non-performance, material delay
in delivery or other material noncompliance by Sagemark with respect to its
obligations under any of such contracts.
3.12. Accuracy of Information; Survival. No representation or
warranty made by Sagemark to TAL in this Agreement contains any untrue statement
of a material fact or omits to state any material fact necessary, in light of
the circumstances under which it is made, to make the information contained in
such representation or warranty not misleading. All of the representations and
warranties of Sagemark contained in this Section 3 shall be true and correct as
of the date hereof and as of the Closing Date and will survive the Closing Date
for a period of
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six (6) months and shall not be merged therein. Sagemark will deliver an
officer's certificate to TAL at the Closing confirming the accuracy of such
representations and warranties as of the Closing Date. Except as set forth in
this Section 3 or as otherwise expressly provided in this Agreement, Sagemark
has not made any other representations or warranties to TAL in connection with
the transactions contemplated by this Agreement. Sagemark hereby expressly
disclaims any representation or warranty in any way relating to (a) the value of
(i) the Limited Partnership Interest, (ii) the Remaining Limited Partnership
Interest, or (iii) the portfolio investments of Sagemark Capital, or (b) any
filing or other action, if any, that may be required by Sagemark under the
Investment Company Act of 1940, as amended, with respect to the transactions
contemplated by this Agreement.
4. Representations and Warranties of TAL. TAL represents and
warrants to Sagemark as follows:
4.1. Organization and Standing. TAL is a corporation duly
organized, validly existing, and in good standing under the laws of Bermuda with
full corporate power and authority to own, lease, and operate its properties and
to carry on its business as currently conducted. TAL does not have an office or
otherwise conduct business in the United States.
4.2. Authority; Binding Obligation. TAL has all requisite
power and authority necessary for, and has taken all required corporate action
with respect to, the authorization, execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby and this
Agreement, when executed and delivered by TAL, will constitute a valid and
legally binding obligation of TAL, 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.
4.3. No Conflict. TAL has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement and,
except for any consent or approval of the SBA which may be required, if any, and
any approval pursuant to the applicable provisions of the Partnership Agreement,
to the best of TAL's knowledge, no consent of any third party is necessary with
respect thereto. Neither the authorization, execution, delivery and performance
of this Agreement nor the consummation of any of the transactions contemplated
hereby will violate any provision of the Certificate of Incorporation or the
Bye-Laws of TAL or violate or be in conflict with or constitute, with or without
the passage of time or giving of notice, either a default under any judgment,
order, writ, decree, instrument, document or other agreement to which TAL is a
party or by which it is bound, or an event which will create rights of
acceleration, termination, cancellation, default or loss of rights thereunder,
or result in the creation of any lien, claim, charge or encumbrance upon the
Sagemark Shares, except as to any such consent or approval of the SBA or under
the Partnership Agreement.
4.4. Ownership of the Sagemark Shares. The Sagemark Shares are
the only shares of capital stock of Sagemark owned by TAL. TAL is the beneficial
owner of the
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Sagemark Shares (and, to the best of TAL's knowledge, it is the of record owner
of the Sagemark Shares) and TAL will sell and transfer the Sagemark Shares to
Sagemark on the Closing Date, free and clear of all liens, claims and
encumbrances of any kind. The delivery of the Sagemark Shares to Sagemark on the
Closing Date, duly endorsed for transfer by TAL (or accompanied by duly executed
stock powers), will result in Sagemark's acquisition of the beneficial ownership
of the Sagemark Shares (and, to the best of TAL's knowledge, the of record
ownership of the Sagemark Shares), free and clear of all liens, claims and
encumbrances of any kind.
4.5. No Litigation. To the best of TAL's knowledge, TAL is not
subject to any injunction, writ, judgment, order or decree of any court or
governmental or other body which in any way relates to this Agreement or the
transactions contemplated hereby. TAL is not a party or otherwise subject to any
action, suit, or proceeding in any way relating to this Agreement or the
transactions contemplated hereby nor, to the best knowledge of TAL, is any such
action, suit, or proceeding threatened against TAL. There is no action, suit or
proceeding by TAL relating in any way this Agreement or the transactions
contemplated hereby currently pending or which TAL intends to initiate.
4.6. Investment Representation. The Limited Partnership
Interest is being acquired by TAL (and the Remaining Limited Partnership
Interest will be, if acquired by TAL) for its own account, for investment
purposes only, and not with a view to the resale or any distribution thereof
within the meaning of the Act. TAL understands and acknowledges that the Limited
Partnership Interest (and, if acquired by TAL, the Remaining Limited Partnership
Interest) is not registered under the Act, that resale of the Limited
Partnership Interest (and, if acquired by TAL, the Remaining Limited Partnership
Interest) can only be made if registered or made in accordance with applicable
exemptions or registration under the Act and is otherwise in compliance with the
Partnership Agreement and the Small Business Investment Company Act of 1958, as
amended (the "SBIC Act"), and all applicable rules and regulations of the SBA
thereunder.
4.7. Exempt. Subject to the accuracy of Sagemark's
representations in Section 3 hereof, the sale and transfer of the Sagemark
Shares by TAL to Sagemark constitutes a transaction exempt from the registration
requirements of Section 5 of the Act.
4.8. Broker's or Finder's Fees. TAL has not engaged or dealt
with any broker, finder, or other person who is entitled to any brokerage fee,
commission or other compensation as a result of the execution of this Agreement
and/or the consummation of the transactions contemplated hereby.
4.9. Governmental Consent, etc. To the best of TAL's
knowledge, no Approvals of any governmental authority on the part of TAL are
required in connection with the transfer of the Sagemark Shares by TAL to
Sagemark, except for any Approvals that may be required by the SBA.
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4.10. No Default. To the best of TAL's knowledge, TAL has
performed, or is now performing, the material obligations of, and TAL is not in
material default (or would by the lapse of time and/or the giving of notice be
in material default) in respect of, any contract, agreement or commitment
binding upon it or its assets or properties and material to the conduct of its
business, which default would materially adversely affect the transactions
contemplated by this Agreement. No third party has notified TAL of any material
claim, dispute or controversy with respect to any of the executory contracts of
TAL, the breach of which would materially adversely affect the transactions
contemplated by this Agreement, nor has TAL received notice of any material
alleged non-performance, material delay in delivery or other material non-
compliance by TAL with respect to its obligations under any of such contracts.
4.11. Accuracy of Information; Survival. No representation or
warranty made by TAL to Sagemark in this Agreement contains any untrue statement
of a material fact or omits to state any material fact necessary, in light of
the circumstances under which it is made, to make the information contained in
such representation or warranty not misleading. All of the representations and
warranties of TAL contained in this Section 4 shall be true and correct as of
the date hereof and as of the Closing Date and will survive the Closing Date for
a period of six (6) months and shall not be merged therein. TAL will deliver an
officer's certificate to Sagemark at the Closing confirming the accuracy of such
representations and warranties as of the Closing Date. Except as set forth in
this Section 4 or as otherwise expressly provided in this Agreement, TAL has
made no other representations or warranties to Sagemark in connection with the
transactions contemplated by this Agreement. TAL hereby expressly disclaims any
representation or warranty in any way relating to (a) the value of the Sagemark
Shares, or (b) any filing or other action, if any, that may be required by TAL
under the Investment Company Act of 1940, as amended, with respect to the
transactions contemplated by this Agreement.
5. Acknowledgments and Covenants.
5.1. Acknowledgment. TAL will comply with the applicable
material provisions of the Partnership Agreement from and after the Closing
Date. TAL will cooperate with Sagemark's counsel in providing any relevant
factual information or executing any document legally necessary for the legal
opinion of Sagemark's counsel referred to in Section 8.4 hereof.
5.2. Transfer Documents. Each of Sagemark and TAL hereby agree
to execute any document or instrument requested of either of them by Sagemark
Management LLC ("SML"), the General Partner of Sagemark Capital, for purposes of
effecting the transfer of the Limited Partnership Interest to TAL and/or the
admission of TAL as a limited partner of Sagemark Capital, whether on the
Closing Date or thereafter.
5.3. Consent. By its execution of this Agreement, SML hereby
consents to (i) the sale and transfer of the Limited Partnership Interest by
Sagemark to TAL on the Closing Date, and (ii) the transfer and assignment to TAL
on the Closing Date of all rights, benefits and
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obligations of Sagemark under that certain Letter Agreement dated November 20,
2000 between Sagemark and SML (the "Letter Agreement") to the extent of the
26.816% interest in Sagemark Capital represented by the Limited Partnership
Interest (and if acquired by TAL subsequent to the Closing Date, the 34.684%
interest in Sagemark Capital represented by the Remaining Limited Partnership
Interest). SML hereby confirms that on and as of the Closing Date, as a
consequence of the sale and transfer of the Limited Partnership Interest to TAL,
Sagemark's unpaid capital contribution to Sagemark Capital will be $187,890 and
TAL will assume responsibility to make a capital contribution to Sagemark
Capital in the amount of $145,265 (subject to the applicable provisions of the
Letter Agreement).
5.4. SBA Consent. Both Sagemark and Sagemark Capital hereby
agree to use their best efforts to obtain any consent to the transactions
contemplated by this Agreement that may be required, if any, from the SBA
pursuant to the SBIC Act, and the rules and regulations promulgated by the SBA
thereunder (the "Regulatory Approval"), including any consent required as a
result of a transfer of more than 10% of an interest in Sagemark Capital. TAL
will cooperate with Sagemark and Sagemark Capital with respect thereto. Sagemark
Capital will file a request or application for the Regulatory Approval as soon
as practical after the execution of this Agreement. Both Sagemark and Sagemark
Capital hereby agree to use their best efforts to diligently pursue, in good
faith, the Regulatory Approval and to take all actions reasonably necessary to
obtain such approval (and, if required by the SBA in connection with such
consent, to make such modifications to this Agreement which are necessary to
obtain such consent provided that any such modification does not materially
alter or modify Sagemark's or TAL's rights or obligations under this Agreement).
Both Sagemark Capital and Sagemark hereby agree to pursue all rights and actions
available to either of them to obtain such approval, including all rights of
review and appeal available to either of them for purposes of obtaining the
Regulatory Approval. Sagemark and Sagemark Capital will each bear 50% of the
legal fees and disbursements hereafter incurred by special SBA counsel engaged
by either or both of them to obtain the Regulatory Approval, provided that
Sagemark and Sagemark Capital, as applicable, agree, in writing, to such costs
prior to such costs being incurred by either of such parties.
6. Conditions to TAL's Obligations. The obligations of TAL to
consummate the transactions contemplated by this Agreement are subject to and
conditioned upon the fulfillment or waiver, on or before the Closing Date, of
each of the following conditions. If any of such conditions are not fulfilled by
Sagemark or waived by TAL on or before the Closing Date, TAL may terminate this
Agreement upon written notice to Sagemark.
6.1. Representations and Warranties. The representations,
warranties, covenants and agreements of Sagemark in this Agreement shall be
true, accurate and complete both on the date of this Agreement and on the
Closing Date and Sagemark shall have performed and complied with all agreements,
covenants and conditions required by this Agreement to be performed or complied
with by it prior to or on the Closing Date, and TAL shall have been furnished
with a certificate of the President of Sagemark, dated as of the Closing Date,
certifying to the fulfillment of the foregoing conditions.
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6.2. Delivery of Limited Partnership Interest. Sagemark shall
have legally transferred the Limited Partnership Interest to TAL and executed
any document or instrument requested of it by SML to effectuate such transfer.
6.3. Absence of Litigation. No order, stay, injunction or
decree of any court of competent jurisdiction shall be in effect that prevents
or delays the consummation of any of the transactions contemplated hereby. No
action, suit, or proceeding before any court or any governmental or regulatory
agency or authority shall be pending (or threatened by any governmental or
regulatory agency or authority), and no investigation by any governmental or
regulatory agency or authority shall have been commenced (and be pending), in
all of such instances seeking to restrain or prohibit (or questioning the
validity or legality of) the consummation of the transactions contemplated by
this Agreement or seeking damages in connection therewith which TAL, in good
faith and upon the advice of counsel, believes makes it undesirable to proceed
with the consummation of the transactions contemplated hereby.
6.4. Regulatory Filings. All necessary regulatory or
governmental approvals and consents (including, without limitation, any
Regulatory Approval) required to consummate the transactions contemplated hereby
shall have been obtained without any term or condition which would materially
change the rights or obligations of the parties under this Agreement. All
conditions, if any, which are required to be satisfied prior to the Closing Date
by the terms of such approvals and consents shall have been satisfied, and all
statutory waiting periods in respect thereof shall have expired as of the
Closing Date.
6.5. Delivery. Sagemark shall deliver all of the documents
required by Section 8 hereof.
7. Conditions to Sagemark's Obligations. The obligations of
Sagemark to consummate the transactions provided for under this Agreement are
subject to and conditioned upon the fulfillment or waiver on and as of the
Closing Date, of each of the following conditions. If any of such conditions are
not satisfied by TAL or waived by Sagemark on or before the Closing Date,
Sagemark may terminate this Agreement upon notice to TAL.
7.1. Representations and Warranties. The representations,
warranties, covenants and agreements of TAL in this Agreement shall be true,
accurate and complete both on the date of this Agreement and on the Closing Date
and TAL shall have performed and complied with all agreements, covenants and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date and Sagemark shall have been furnished with a
Certificate of the President of TAL, dated as of the Closing Date, certifying to
the fulfillment of the foregoing conditions.
7.2. Delivery of the Sagemark Shares. TAL shall have delivered
to Sagemark the certificate(s) for the Sagemark Shares, duly endorsed for
transfer to Sagemark, or accompanied by duly executed stock powers.
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7.3. Absence of Litigation. No order, stay, injunction or
decree of any court of competent jurisdiction shall be in effect that prevents
or delays the consummation of any of the transactions contemplated hereby. No
action, suit, or proceeding before any court or any governmental or regulatory
agency or authority shall be pending (or threatened by any governmental or
regulatory agency or authority), and no investigation by any governmental or
regulatory agency or authority shall have been commenced (and be pending), in
all of such instances seeking to restrain or prohibit (or questioning the
validity or legality of) the consummation of the transactions contemplated by
this Agreement or seeking damages in connection therewith which Sagemark, in
good faith and upon the advice of counsel, believe makes it undesirable to
proceed with the consummation of the transactions contemplated hereby.
7.4. Regulatory Filings. All necessary regulatory or
governmental approvals and consents (including, without limitation, any
Regulatory Approval) required to consummate the transactions contemplated hereby
shall have been obtained without any term or condition which would materially
change the rights or obligations of the parties under this Agreement. All
conditions, if any, which are required to be satisfied prior to the Closing Date
by the terms of such approvals and consents shall have been satisfied, and all
statutory waiting periods in respect thereof shall have expired as of the
Closing Date.
7.5. Instruments. TAL shall have signed all documents and
instruments requested of it by SML to effect the transfer to it of the Limited
Partnership Interest.
7.6. Delivery. TAL shall deliver all of the documents required
by Section 9 hereof.
8. Documents to be Delivered by Sagemark at the Closing. Sagemark
will deliver the following documents to TAL at the Closing:
8.1. Certificate. The Certificate signed by the President of
Sagemark as required by Section 6.1 hereof.
8.2. Resolutions of Sagemark. A certified copy of resolutions
adopted by the Board of Directors of Sagemark and certified by the Secretary
thereof approving the execution of this Agreement and all other agreements,
documents and instruments contemplated to be executed by Sagemark in connection
with this Agreement and the consummation of the transactions contemplated by
this Agreement, including the transfer of the Limited Partnership Interest to
TAL in accordance with the applicable provisions of this Agreement.
8.3. Limited Partnership Interest Instrument. Any instrument
or document signed by Sagemark which is requested by SML to effect a transfer to
TAL of the Limited Partnership Interest.
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8.4. Opinion of Counsel. TAL shall have received a copy of an
opinion of counsel to Sagemark issued to Sagemark Capital, dated the Closing
Date, in form and substance reasonably satisfactory to TAL and SML, which opines
that the Limited Partnership Interest may be sold and transferred to TAL,
without registration of such interest.
8.5. Other Documents. Such other certificates, documents,
instruments and information required by this Agreement to be delivered by
Sagemark, or as TAL or its counsel may otherwise reasonably request, consistent
with the provisions of this Agreement.
9. Documents to be Delivered by TAL at the Closing. TAL will
deliver the following documents to Sagemark at the Closing:
9.1. Certificate. The Certificate signed by the President of
TAL as required by Section 7.1 hereof.
9.2. TAL Resolutions. A certified copy of resolutions adopted
by the Board of Directors of TAL and certified by the Secretary thereof
approving the execution of this Agreement and all other agreements, documents
and instruments contemplated to be executed by TAL in connection with this
Agreement and the consummation of the transactions contemplated by this
Agreement, including the transfer of the Sagemark Shares to Sagemark in
accordance with the applicable provisions of this Agreement.
9.3. Stock Certificates. The stock certificates representing
the Sagemark Shares, duly endorsed for transfer by TAL to Sagemark, or
accompanied by duly executed stock powers.
9.4. Limited Partnership Interest Instrument. Any instrument
or document signed by TAL which is requested by SML to effect a transfer to TAL
of the Limited Partnership Interest.
9.5. Other Documents. Such other certificates, documents,
instruments, and information required by this Agreement to be delivered by TAL,
or as Sagemark or its counsel may otherwise reasonably request, consistent with
the provisions hereof.
10. Termination of Agreement Prior to the Closing.
10 .1. Termination Right. This Agreement may be terminated
prior to the Closing Date:
(a) By mutual written consent of the parties hereto; or
(b) By TAL or Sagemark if the Closing Date shall not
have occurred by February 28, 2002 (the "Cutoff Date"), unless the failure of
such occurrence shall be due to
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the failure of the party seeking to terminate this Agreement to perform or
observe its agreements set forth herein to be performed or observed by such
party on or before the Closing Date; or
(c) By Sagemark or TAL upon written notice to the other
if any application for the Regulatory Approval shall have been denied by the SBA
beyond any legal right of appeal or review, provided that, if applicable,
Sagemark and TAL have not been able to agree upon any modification to this
Agreement pursuant to Section 5.4 hereof; or
(d) By Sagemark or TAL, as applicable, in the event
that any of the conditions in Sections 6 and 7 hereof are not satisfied or
waived on the Closing Date unless the failure to satisfy any such condition is
due to the failure of Sagemark or TAL, as applicable, to perform or observe its
agreements or obligations as set forth in this Agreement with respect thereto.
10.2. Remedies. The termination of this Agreement by TAL or
Sagemark under Sections 10.1(a), 10.1(b) or 10.1(c) shall be TAL's or
Sagemark's, as the case may be, sole and exclusive remedy therefor and
thereafter, neither TAL nor Sagemark shall have any further rights or
obligations under this Agreement. Notwithstanding the foregoing, neither
Sagemark nor TAL, as applicable, shall be relieved of any liability to the other
for any breach of their other respective representations, warranties, covenants
or obligations under this Agreement.
11. Option.
11.1. The Option. Subject to and subsequent to the Closing,
Sagemark will own a 34.684% limited partnership interest in Sagemark Capital
(the "Remaining Limited Partnership Interest"). Subject to and from and after
the Closing Date through and including December 31, 2001, Sagemark hereby grants
TAL an exclusive option to purchase the Remaining Limited Partnership Interest
(the "Option") for a cash purchase price of $2,600,000 (the "Option Price"). The
Option is subject to the obligations of Sagemark Capital pursuant to Section
11.4 hereof. The Option may be exercised only as to that portion of the
Remaining Limited Partnership Interest not purchased by Sagemark Capital
pursuant to Section 11.4 hereof. If TAL determines to exercise the Option, it
will be required to do so by delivering to Sagemark, on or before 3:00 PM on
December 31, 2001, at 0000 Xxxxxx Xxxx, Xxxxx 000X, Xxxx Xxxxx, Xxxxxxx 00000,
Attention Xxxxxxxx X. Xxxxxxx, President and Chief Executive Officer, a written
notice of exercise, signed by an officer of TAL, together with a certified or
bank check to Sagemark's order in an amount equal to the Option Price (or a wire
transfer to a bank account designated, in writing, by Sagemark at TAL's request
prior to December 31, 2001). If (a) Sagemark is not in receipt of such notice
and payment by 3:00 PM on December 31, 2001, the Option may be terminated by
Sagemark upon three days notice to TAL or (b) the Remaining Limited Partnership
Interest is purchased by Sagemark Capital pursuant to Section 11.4 hereof prior
to the exercise of the Option, as aforesaid, the Option shall be automatically
terminated, without notice, and, in either of such instances, TAL shall have no
further rights or entitlements with respect thereto. The Option is
non-assignable by TAL. If TAL purchases the Remaining
12
Limited Partnership Interest hereunder, it will confirm, in writing, its
investment intent with respect thereto in accordance with the applicable
provisions of the Securities Act.
11.2. Consent; Waiver. By its execution hereof, SML hereby (a)
consents to the sale and transfer of the Remaining Limited Partnership Interest
to TAL in the event that TAL exercises the Option, as aforesaid, and (b) waives
the requirement in Section 7.5 of the Partnership Agreement for a legal opinion
of Sagemark's counsel as to the transfer of the Limited Partnership Interest
(and, if applicable hereafter, the Remaining Limited Partnership Interest) not
causing Sagemark Capital to be required to register under the Investment Company
Act or to lose the "safe harbor" exemption from registration under the
Investment Company Act that relates to the number of beneficial owners of the
securities issued by Sagemark Capital. Both Sagemark and TAL hereby agree to
execute any instrument or document reasonably requested of either of them by SML
to effectuate such sale and transfer.
11.3. Disclaimer. In the event that TAL exercises the Option,
as aforesaid, and purchases the Remaining Limited Partnership Interest from
Sagemark, it hereby acknowledges and agrees that it will purchase said interest
without any representation or warranty from Sagemark as to the value of the
Remaining Limited Partnership Interest or the value of the portfolio investments
of Sagemark Capital.
11.4. Sagemark Capital Purchase. In consideration of
Sagemark's agreement hereunder to sell the Limited Partnership Interest to TAL,
an affiliate of Sagemark Capital, the sufficiency of which consideration is
hereby acknowledged by Sagemark Capital, Sagemark Capital hereby agrees that if
and to the extent it receives any Proceeds (hereinafter defined) during the
period from the date hereof through September 30, 2002 (the "Purchase Period"),
it will, within three (3) business days thereafter, purchase all or such portion
of the Remaining Limited Partnership Interest as hereinafter provided. At each
such time(s) during the Purchase Period that Sagemark Capital receives any
Proceeds, it will notify Sagemark and TAL and shall then deliver to Sagemark, at
0000 Xxxxxx Xxxx, Xxxxx 000X, Xxxx Xxxxx, Xxxxxxx 00000, Attention Xxxxxxxx X.
Xxxxxxx, President and Chief Executive Officer, within three (3) business days
after its receipt of such Proceeds, a certified or bank check to Sagemark's
order (or a wire transfer to a bank account designated, in writing, by Sagemark)
in an amount equal to the Proceeds received by Sagemark Capital, up to a maximum
of $2,600,000 (the "Purchase Price") and, by virtue of such payment, it will
acquire such portion of the Remaining Limited Partnership Interest as shall
equal the product of (i) a fraction, the numerator of which will be the amount
of Proceeds so received and the denominator of which will be $2,600,000
multiplied by (ii) the Remaining Limited Partnership Interest. Sagemark will,
upon its receipt of the Purchase Price, execute any such documents or
instruments requested of it by SML to confirm the sale or transfer to Sagemark
Capital of that portion of the Remaining Limited Partnership Interest purchased
by Sagemark Capital (and, upon any such occurrence prior to the Closing
hereunder, Sagemark's remaining capital contribution obligation to Sagemark
Capital will be reduced by an amount equal to $331,155 multiplied by the
percentage of the Remaining Limited Partnership Interest purchased by Sagemark
Capital). For purposes hereof, the term "Proceeds" shall mean all sums
13
received by Sagemark Capital from the sale of any of its debt or equity
securities to Xxxxxx Xxxxxx, The Starfield Fund, Benchmark Equity Group, Xxxxx
XxXxxx, any current general or limited partner of Sagemark Capital or any Middle
Eastern investor, or any entity owned or controlled by, or under the common
control of, any of the foregoing persons or entities. If Sagemark Capital sells
any of its debt or equity securities to any other third party during the
Purchase Period, it will use its best efforts to have such third party agree to
permit it to utilize the sums received by it from such sale(s) for payment of
the Purchase Price to Sagemark, as provided in this Section. Sagemark Capital
will provide Sagemark with prompt written notice of all sales of its debt or
equity securities during the Purchase Period. If Sagemark Capital purchases the
Remaining Limited Partnership Interest hereunder, it will confirm, in writing,
its investment intent with respect thereto in accordance with the applicable
provisions of the Securities Act. This Section will survive the Closing of the
transactions contemplated hereby.
12. Indemnification.
12.1. Indemnification by Sagemark. Notwithstanding the Closing
of the transactions contemplated by this Agreement and regardless of any
investigation at any time made by or on behalf of TAL or of any knowledge or
information that TAL may have, Sagemark shall indemnify and fully defend, save
and hold (i) TAL, (ii) any affiliate (i.e., any person or entity which directly
or indirectly controls, or is under common control with, or is controlled by,
TAL) of TAL, and (iii) each of TAL's directors, officers, shareholders, and
employees (individually a "TAL Indemnitee" or collectively, the "TAL
Indemnitees") harmless if any TAL Indemnitee shall at any time or from time to
time suffer any damage, liability, loss, cost, expense (including all reasonable
attorneys' fees and expenses of investigation incurred by the TAL Indemnitees in
any action or proceeding between Sagemark and the TAL Indemnitees or between the
TAL Indemnitees and any third party or otherwise), deficiency, interest,
penalty, imposition, assessment or fine (collectively, the "TAL Losses") arising
out of or resulting from, or shall pay or become obligated to pay any sum on
account of, any of the Sagemark's Events of Breach. As used herein, "Sagemark's
Events of Breach" shall be and mean any one or more of the following:
(a) any untruth or inaccuracy in any representation of
Sagemark or the breach of any representation or warranty of Sagemark contained
in this Agreement or in any certificate, document or instrument delivered to TAL
hereunder (without giving effect to any limitation or qualification as to
materiality contained in any such representation or warranty); or
(b) any failure of Sagemark duly to perform or observe
any term, provision, covenant, agreement contained in this Agreement.
12.2. Procedures for Indemnification by Sagemark. If, with
respect to a third party, a Sagemark's Events of Breach occurs or is alleged and
a TAL Indemnitee asserts that Sagemark has become obligated to such TAL
Indemnitee pursuant to Section 12.1 hereof (an Indemnity Claim"), or if any
suit, action, investigation, claim or proceeding (a "Proceeding") is
14
begun, made or instituted by a third party as a result of which Sagemark may
become obligated to a TAL Indemnitee hereunder, such TAL Indemnitee shall give
written notice promptly to Sagemark; the failure to so notify Sagemark shall
not, however, release Sagemark of any obligation or liability it may have to
such TAL Indemnitee under such Section unless such failure materially prejudices
Sagemark. Sagemark agrees to defend, contest or otherwise protect the TAL
Indemnitee against any Indemnity Claim or Proceeding at Sagemark's sole cost and
expense. The TAL Indemnitee shall have the right, but not the obligation, to
participate at its own expense in the defense thereof by counsel of the TAL
Indemnitee's choice and shall in any event cooperate with and assist Sagemark to
the extent reasonably possible. If Sagemark fails timely to defend, contest or
otherwise protect against such Indemnity Claim or Proceeding, the TAL Indemnitee
shall have the right to do so, including, without limitation, the right to make
any compromise or settlement thereof, and the TAL Indemnitee shall be entitled
to recover the entire cost thereof from Sagemark, including, without limitation,
reasonable attorneys' fees, disbursements and amounts paid as the result of such
Indemnity Claim or Proceeding, and Sagemark shall be bound by any determination
made in such Indemnity Claim or Proceeding or any compromise or settlement
effected by the TAL Indemnitee. If Sagemark assumes the defense of any Indemnity
Claim or Proceeding, (a) it will be conclusively established for purposes of
this Agreement that the claims made in that Indemnity Claim or Proceeding are
within the scope of and subject to indemnification hereunder, (b) no compromise
or settlement of such claims may be effected by Sagemark without the TAL
Indemnitee's consent unless (i) there is no finding or admission of any
violation of federal, state, local, municipal, foreign, international,
multinational or other administrative order, law, ordinance, principal of common
law, regulation, statute or treaty or any violation of the rights of any person
and no effect on any other claims that may be made against the TAL Indemnitee
and (ii) the sole relief provided is monetary damages that are paid in full by
Sagemark; and (c) the TAL Indemnitee will have no liability with respect to any
compromise or settlement of such claims effected without its consent.
Notwithstanding anything to the contrary contained in Section 12.1 or in this
Section 12.2, if any TAL Indemnitee settles or compromises any Indemnitee Claim
or Proceeding without Sagemark's prior written consent, Sagemark shall have no
obligation for indemnification under Section 12.1or this Section 12.2.
12.3. Indemnification by TAL. Notwithstanding the Closing of
the transactions contemplated by this Agreement and regardless of any
investigation at any time made by or on behalf of Sagemark or of any knowledge
or information that Sagemark may have, TAL shall indemnify and fully defend,
save and hold (i) Sagemark (ii) any affiliate (i.e., any person or entity which
directly or indirectly controls, or is under common control with, or is
controlled by, Sagemark) of Sagemark and (iii) each of Sagemark's directors,
officers, shareholders, and employees (individually a "Sagemark Indemnitee" or
collectively, the "Sagemark Indemnitees") harmless if any Sagemark Indemnitee
shall at any time or from time to time suffer any damage, liability, loss, cost,
expense (including all reasonable attorneys' fees and expenses of investigation
incurred by the Sagemark Indemnitees in any action or proceeding between TAL and
the Sagemark Indemnitees or between the Sagemark Indemnitees and any third party
or otherwise), deficiency, interest, penalty, imposition, assessment or fine
(collectively,
15
the "Sagemark Losses") arising out of or resulting from, or shall pay or become
obligated to pay any sum on account of, any of the TAL's Events of Breach. As
used herein, "TAL's Events of Breach" shall be and mean any one or more of the
following:
(a) any untruth or inaccuracy in any representation of
TAL or the breach of any representation or warranty of TAL contained in this
Agreement or in any certificate, document or instrument delivered to Sagemark
hereunder (without giving effect to any limitation or qualification as to
materiality contained in any such representation or warranty); or
(b) any failure of TAL duly to perform or observe any
term, provision, covenant, agreement contained in this Agreement.
12.4. Procedures for Indemnification by TAL. If, with respect
to a third party, a TAL's Events of Breach occurs or is alleged and a Sagemark
Indemnitee asserts that TAL has become obligated to such Sagemark Indemnitee
pursuant to Section 12.1 hereof (a "Sagemark Indemnity Claim"), or if any suit,
action, investigation, claim or proceeding (a "Proceeding") is begun, made or
instituted by a third party as a result of which TAL may become obligated to a
Sagemark Indemnitee hereunder, such Sagemark Indemnitee shall give written
notice promptly to TAL; the failure to so notify TAL shall not, however, release
TAL of any obligation or liability it may have to such Sagemark Indemnitee under
such Section unless such failure materially prejudices TAL. TAL agrees to
defend, contest or otherwise protect the Sagemark Indemnitee against any
Sagemark Indemnity Claim or Proceeding at TAL's sole cost and expense. The
Sagemark Indemnitee shall have the right, but not the obligation, to participate
at its own expense in the defense thereof by counsel of the Sagemark's
Indemnitee's choice and shall in any event cooperate with and assist TAL to the
extent reasonably possible. If TAL fails timely to defend, contest or otherwise
protect against such Sagemark Indemnity Claim or Proceeding, the Sagemark
Indemnitee shall have the right to do so, including, without limitation, the
right to make any compromise or settlement thereof, and the Sagemark Indemnitee
shall be entitled to recover the entire cost thereof from TAL, including,
without limitation, reasonable attorneys' fees, disbursements and amounts paid
as the result of such Sagemark Indemnity Claim or Proceeding, and TAL shall be
bound by any determination made in such Sagemark Indemnity Claim or Proceeding
or any compromise or settlement effected by the Sagemark Indemnitee. If TAL
assumes the defense of any Sagemark Indemnity Claim or Proceeding, (a) it will
be conclusively established for purposes of this Agreement that the claims made
in that Sagemark Indemnity Claim or Proceeding are within the scope of and
subject to indemnification hereunder, (b) no compromise or settlement of such
claims may be effected by TAL without the Sagemark Indemnitee's consent unless
(i) there is no finding or admission of any violation of federal, state, local,
municipal, foreign, international, multinational or other administrative order,
law, ordinance, principal of common law, regulation, statute or treaty or any
violation of the rights of any person and no effect on any other claims that may
be made against the Sagemark Indemnitee and (ii) the sole relief provided is
monetary damages that are paid in full by Sagemark; and (c) the Sagemark
Indemnitee will have no liability with respect to any compromise or settlement
of
16
such claims effected without its consent. Notwithstanding anything to the
contrary contained in Section 12.3 or in this Section 12.4, if any Sagemark
Indemnitee settles or compromises any Indemnitee Claim or Proceeding without
TAL's prior written consent, TAL shall have no obligation for indemnification
under Section 12.3 or this Section 12.4.
12.5. Successors and Assigns. All of the rights and
obligations of Sagemark and TAL pursuant to this Section 12 shall survive the
Closing of the transactions contemplated by this Agreement and shall apply to
and bind each and every successor and assign of TAL to any of the Limited
Partnership Interest.
13. Public Announcements. TAL shall not make or disseminate any
public filing or announcement concerning this Agreement or any of the
transactions herein contemplated without Sagemark's written consent. TAL
acknowledges that Sagemark is subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended, and Sagemark may make or
disseminate public filings and/or announcements concerning this Agreement or any
of the transactions herein contemplated as may be otherwise required by
applicable law, rule or regulation. TAL shall keep confidential and not disclose
to any person (other than its attorneys, accountants, and advisers) or use any
non-public information with respect to Sagemark obtained by TAL in connection
herewith unless and until such information shall be publicly disclosed or
disseminated by Sagemark.
14. Miscellaneous.
14.1. Sole Agreement. This Agreement constitutes the sole and
entire agreement among the parties hereto in respect of the transactions
contemplated hereby and supersedes all prior agreements, arrangements,
understandings, representations and warranties relating to the subject matter
hereof. No amendment, change in, or modification to this Agreement shall be
binding unless in writing and signed by the party to be bound thereby.
14.2. Notices. All notices, consents, demands, requests, and
other communications required or permitted to be given hereunder (the "Notices")
shall be in writing and shall be deemed to have been duly given on the same day
if delivered personally, receipt acknowledged, or by facsimile transmission
(with original to follow by first class mail),or by nationally recognized
overnight courier service for next business day delivery, or three (3) days
after mailing if mailed by certified mail, return receipt requested, addressed
to the parties as follows (or to such other address as a party may designate as
to itself by Notice to the other parties):
(a) If to Sagemark, to it at its address set forth on
the first page of this Agreement, to the attention of its President, with a copy
to:
17
Xxxxxx X. Xxxxxxx, Esq.
c/o Gusrae Xxxxxx & Bruno, PLLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) If to TAL, to it at the address set forth on the
first page of this Agreement, to the attention of Xxxxx X. XxXxxx, with a copy
to:
Xxxxx X. Xx Xxxxxxx, Esq.
De Xxxxxxx Xxxxxxxxxxx Xxxxx & Xxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
(c) If to Sagemark Capital, L.P., to it at:
Sagemark Capital, L.P.
000 Xxxxxx Xxxxxx - Xxxxx 000
Xxxxxxx, Xxxxx 00000
with copies to:
Xxxxxx X. Xxxxxxxx Xx., Esq.
0000 XxXxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
14.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York with respect to
contracts made and to be fully performed therein, without regard to the
conflicts of laws principles thereof, except as to applicable Federal and state
securities laws. The parties hereto hereby agree that any action, suit or
proceeding arising under this Agreement shall be brought solely in a Federal or
state court located in the City, County and State of New York, except for any
action, suit or proceeding seeking an equitable remedy hereunder which may be
brought in any court of competent jurisdiction. By their execution hereof, the
parties hereto hereby consent and irrevocably submit to the in personam
jurisdiction of the Federal and state courts located in the City, County and
State of New York and agree that any process in any action, suit or proceeding
commenced in such courts under this Agreement may be served upon them personally
or by certified or registered mail, return receipt requested, or by Federal
Express or other courier service, with the same force and effect as if
personally served upon them in the City, County and State of New York. The
parties hereto each waive any claim that any such jurisdiction is not a
convenient forum for any such action, suit or proceeding and any defense of lack
of in personam jurisdiction with respect thereto.
18
14.4. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Nothing in this Agreement, whether expressed or implied, is
intended to confer any rights or remedies upon or by reason of this Agreement on
any persons other than the parties hereto, the TAL Indemnitees and the Sagemark
Indemnitees, and their respective successors and permitted assigns, nor is this
Agreement, or any of the parties' rights or obligations hereunder, assignable
absent the written consent of the non-assigning parties.
14.5. Notice and Cure. Neither Sagemark nor TAL shall be in
breach or default of any of their respective representations and warranties
under this Agreement unless they receive notice of any claim of breach or
default thereof and fail to cure same within thirty (30) days after such notice
(except that Sagemark or TAL, as applicable, will be responsible for any damage
or loss caused to the other by any such breach or default prior to or during any
such thirty (30) day cure period).
14.6. Counsel. The parties to this Agreement hereby
acknowledge that they have been represented by separate counsel (or had an
opportunity to do so).
14.7. Severability. Any provision of this Agreement which is
determined to be invalid or unenforceable shall be ineffective to the extent of
such invalidity or unenforceability without affecting in any way the remaining
provisions hereof.
14.8. Headings. The Section headings contained herein are for
the purpose of convenience only and are not intended to define or limit the
contents of said Sections.
14.9. Further Assurances. The parties hereto hereby agree
that, at any time and from time to time upon the reasonable request of the other
parties hereto, they shall do, execute, acknowledge and deliver, or cause to be
done, executed, acknowledged and delivered, such further acts, deeds,
assignments, transfers, conveyances and assurances as may be reasonably required
to more effectively consummate this Agreement and the transactions contemplated
thereby or to confirm or otherwise effectuate the provisions of this Agreement,
including, without limitation, any documents or instruments, if any, that may be
required to obtain the consent of the SBA to the transactions contemplated
hereby.
14.10. Expenses. Except as provided below in this Section, the
parties hereto shall bear all of their own costs and expenses in connection with
the negotiation, preparation, execution and performance of this Agreement. In
any action, suit or proceeding brought by any party hereto to enforce any
provision of this Agreement, the prevailing party shall be entitled to recover
all costs and expenses incurred by it in connection with such action, suit or
proceeding, including, but not limited to, all attorneys' fees and
disbursements.
14.11. Confidentiality. All information or documentation (a)
contained in this Agreement, or (b) relating to the shareholders of TAL, or (c)
otherwise marked or confirmed in
19
writing by any of the parties hereto as being "confidential information", shall
be kept confidential by those parties hereto receiving such information or
documentation and shall not be used by any of such receiving parties otherwise
than as herein contemplated except to the extent that (i) such information or
documentation is now or hereafter becomes available in the public domain, (ii)
it is or hereafter becomes lawfully obtainable from other sources or was
disclosed prior to the date of this Agreement, (iii) it is necessary or
appropriate to disclose to the SBA, the SEC or any other regulatory authority
having jurisdiction over the parties or their subsidiaries or as may otherwise
be required by law, or (iv) to the extent such duty as to confidentiality is
waived by any of the parties disclosing such information or documentation. In
the event of the termination of this Agreement, each party receiving such
information or documentation shall use all reasonable efforts to return, upon
request of the applicable party hereto, all such confidential information and
documentation (and reproductions thereof) received from such other parties (and,
in the case of reproductions, all such reproductions made by the receiving
party) that includes any such information or documents not within the exceptions
contained in the first sentence of this Section 14.11.
14.12. No Assignment. This Agreement may not be assigned by
any of the parties hereto, by operation of law or otherwise, without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
14.13. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties hereto and delivered to each of the other parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first written.
ATTEST: THE SAGEMARK COMPANIES LTD.
By:
----------------------- ----------------------------------------
Xxxxxxxx X. Xxxxxxx, President and Chief
----------------------- Executive Officer
Print Name and Title
ATTEST: TECHNOLOGY ACQUISITION LTD.
By:
----------------------- ----------------------------------------
Xxxxx XxXxxx, President
-----------------------
Print Name
20
AGREED TO SOLELY AS TO SECTIONS 5.3,
11.2 AND 14 HEREOF
WITNESS: SAGEMARK MANAGEMENT LLC
By:
----------------------- ----------------------------------------
----------------------- --------------------------------------------
Print Name Print Name and Title
AGREED TO SOLELY AS TO SECTIONS 5.4,
11.4 AND 14 HEREOF
WITNESS: SAGEMARK CAPITAL LP
By: SAGEMARK MANAGEMENT LLC
By:
----------------------- ----------------------------------------
--------------------- --------------------------------------------
Print Name Print Name and Title
21
