EXHIBIT 10.1
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TERMINATION AGREEMENT
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AGREEMENT made this 6th day of September, 2007 by and between XXXXXXXXX
XXXXXXX XXXXXXX ("Employee") and THE SAGEMARK COMPANIES LTD. ("Sagemark").
W I T N E S S E T H :
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WHEREAS, Employee and Sagemark are parties to that certain Employment
Agreement dated January 25, 2005 (the "Employment Agreement"); and
WHERAEAS, Sagemark and Employee have agreed to terminate the Employment
Agreement, on and subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein and
other good and valuable consideration, the recipient and sufficiency of which
are hereby unconditionally acknowledged, the parties hereto do hereby agree as
follows:
1. Termination of Employment Agreement.
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(a) Effective October 1, 2007, the Employment Agreement
will be deemed terminated. During the period from the date hereof through
September 30, 2007, Employee will continue to render full time services to
Sagemark pursuant to the terms of the Employment Agreement, except that
Employee's primary (but not sole) services will be with regard to Sagemark's
positron emission tomography ("PET") and PET/computed tomography diagnostic
imaging centers located in Florida and assisting Sagemark with transitioning
services with regard to a successor chief operating officer or equivalent
person(s). Employee shall have no responsibilities during this period to render
services with respect to Sagemark's contemplated cancer treatment centers.
During the period from the date hereof through September 30, 2007, Employee
shall take four of her eight accrued vacation days.
(b) During the period October 1, 2007 through December
31, 2007, Employee may, render telephonic consulting services to Sagemark with
respect to the operations of Sagemark's outpatient diagnostic imaging centers
(exclusive of any such services with respect to Sagemark's contemplated cancer
treatment centers). To the extent that Sagemark requests such services, Sagemark
will pay Employee therefor at the rate of one hundred dollars ($100) per hour,
payment for which will be made promptly after Sagemark's receipt of Employee's
invoice for such services.
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(c) During the period October 1, 2007 through December
31, 0000, Xxxxxxxx will continue to provide Employee with the same health
insurance coverage that Sagemark provides to its other employees (whether by
payment of her Cobra coverage, or otherwise).
(d) Upon the execution of this Agreement, Employee will
return to the Company all files, documents and any personal property of the
Company in her possession or under her control.
2. Severance Compensation. Notwithstanding any provision of the
Employment Agreement to the contrary, Sagemark will pay to Employee, and
Employee agrees to accept, the sum of $49,720.53 (the "Severance Payment") as
severance compensation in consideration of the earlier termination of the
Employment Agreement. The Severance Payment shall be paid to Employee in three
equal monthly installments of $16,573.51 payable on the first day of October,
November and December, 2007. The Severance Payment represents a mutually agreed
upon reduction of the ten months of salary and severance compensation that
Employee would have otherwise been entitled to receive under the Employment
Agreement to four months of severance compensation represented by the Severance
Payment.
3. Mutual Releases.
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(a) 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, Employee, and all
entities owned (in whole or in part), controlled by, or under common control
with Employee, and their respective officers, directors, shareholders,
employees, agents, consultants, heirs, administrators, executors, personal
representatives, successors and assigns (hereinafter collectively referred to as
the "Employee Releasors"), do hereby unconditionally and irrevocably release and
forever discharge Sagemark, and all entities owned (in whole or in part),
controlled by, or under common control with Sagemark, and their respective
officers, directors, shareholders, employees, counsel, agents, consultants,
heirs, administrators, executors, personal representatives, successors and
assigns (hereinafter collectively referred to as the "Sagemark Releasees"), from
any and all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, obligations,
contracts, controversies, agreements, promises, variances, damages, liabilities,
judgments, executions, claims and demands whatsoever, in law or in equity
(whether known or unknown, liquidated or unliquidated and whether suspected or
unsuspected), whether asserted individually, derivatively, or in any other
capacity, which the Employee Releasors, or any of them, ever had, now have or
hereafter can, shall or may have against the Sagemark Releasees (or any of them)
for, by reason of, in any way based upon, arising out of, related to, or
connected with, directly or indirectly, any matter, cause, thing, transaction,
act, or omission whatsoever from the beginning of the world to and including the
date hereof, except for:
(i) All representations, warranties, covenants
and obligations of Sagemark under this
Agreement; and
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(ii) all right, title and interest in and to the
stock option dated January 25, 2005
entitling Employee to purchase up to 35,000
shares of common stock of Sagemark; and
(iii) any claim for indemnification, contribution
or for coverage under Sagemark's officer and
director professional liability insurance
policy; and
(iv) any claim against the Sagemark Releasees
which cannot be released under applicable
law; and
(v) any claim for fraud.
The Employee Releasors hereby covenant and agree not to xxx any of the Sagemark
Releasees with respect to any matter or thing covered by or subject to the
foregoing release, subject to the exceptions set forth above, and with respect
to any suit or proceeding commenced against the Sagemark Releasors to enforce
the terms of the aforementioned release.
(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, Sagemark, and all subsidiaries and
parents thereof, and all entities owned (in whole or in part), controlled by, or
under common control with Sagemark (hereinafter collectively referred to as the
"Sagemark Releasors"), do hereby unconditionally and irrevocably release and
forever discharge Employee, and all entities owned (in whole or in part),
controlled by, or under common control with Employee, and their respective
officers, directors, shareholders, employees, counsel, agents, consultants,
heirs, administrators, executors, personal representatives, successors and
assigns (hereinafter collectively referred to as the "Employee Releasees"), from
any and all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, obligations,
contracts, controversies, agreements, promises, variances, damages, liabilities,
judgments, executions, claims and demands whatsoever, in law or in equity
(whether known or unknown, liquidated or unliquidated and whether suspected or
unsuspected), whether asserted individually, derivatively, or in any other
capacity, which the Sagemark Releasors, or any of them, ever had, now have or
hereafter can, shall or may have against the Employee Releasees (or any of them)
for, by reason of, in any way based upon, arising out of, related to, or
connected with, directly or indirectly, any matter, cause, thing, transaction,
act, or omission whatsoever from the beginning of the world to and including the
date hereof, except for:
(i) All representations, warranties, covenants
and obligations of Employee under this
Agreement; and
(ii) any claim against the Employee Releasees
which cannot be released under applicable
law; and
(iii) any claim for fraud.
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The Sagemark Releasors hereby covenant and agree not to xxx any of the Employee
Releasees with respect to any matter or thing covered by or subject to the
foregoing release, subject to the exceptions set forth above, and with respect
to any suit or proceeding commenced against the Employee Releasees to enforce
the terms of the aforementioned release.
4. Survival. Notwithstanding any provision of this Agreement to
the contrary, the provisions of Section 6 of the Employment Agreement shall
survive the termination thereof and remain in full force and effect in
accordance with the provisions of such Section and the provisions of Section 7
of the Employment Agreement shall survive the termination thereof and remain in
full force and effect in accordance with the provisions of such Section, but
only for the period ending on January 31, 2008.
5. Representations and Warranties.
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(a) All action on the part of Sagemark and Employee
necessary for the authorization, execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, has been
properly taken and obtained by each of them and this Agreement constitutes a
valid and legally binding obligation of Sagemark and Employee enforceable in
accordance with its terms except (i) as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other laws affecting generally the
enforcement of creditors' rights and by the effect of rules governing the
availability of equitable remedies, and (ii) as rights to indemnity or
contribution may be limited under federal or state securities laws or by
principles of public policy thereunder.
(b) The authorization, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby and thereby will not result in any violation or be in
conflict with or constitute, with or without the passage of time or giving of
notice, or both, a breach or default under any instrument, judgment, order,
writ, decree or agreement to which either Sagemark or Employee is a party or by
which either of them is bound.
6. Miscellaneous.
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(a) This Agreement constitutes the sole and entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, representations, warranties, statements,
promises, information, arrangements and understandings, whether oral or written,
express or implied, between the parties hereto with respect to the subject
matter hereof and may not be changed or modified except by an instrument in
writing signed by the party to be bound thereby. No course of conduct or dealing
or trade usage or custom or course of performance by the parties hereto shall
constitute or be relied upon as a modification, supplement, or waiver of any
provision of this Agreement. This Agreement has been subject to the mutual
consultation, negotiation and agreement of the parties hereto and shall not be
construed for or against any party hereto on the basis of such party having
drafted this Agreement.
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(b) Each party acknowledges that it has consulted such
legal, financial, technical and other experts as it deemed necessary or
desirable prior to entering into this Agreement. Each party represents and
warrants that it has read, knows, understands and agrees with the terms and
conditions of this Agreement. Neither party has relied upon any oral
representations of the other party in entering into this Agreement.
(c) All notices, consents, requests, demands and other
communications required or permitted to be given under this Agreement shall be
in writing and delivered personally, receipt acknowledged, or mailed by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the parties hereto as follows (or to such other addresses as either
of the parties hereto shall specify by notice given in accordance with this
provision):
(i) If to Sagemark, to it at:
The Sagemark Companies Ltd.
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxx, President and
Chief Executive Officer
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
00 Xxxx Xxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
(ii) If to Employee:
Xxxxxxxxx Xxxxxxx Xxxxxxx
00 Xxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
All such notices, consents, requests, demands and other communications shall be
deemed given when personally delivered as aforesaid, or, if mailed as aforesaid,
on the third business day after the mailing thereof or on the day actually
received, if earlier, except for a notice of a change of address which shall be
effective only upon receipt.
(d) Neither party hereto may assign this Agreement or its
or their respective rights, benefits or obligations hereunder without the
written consent of the other parties hereto.
(e) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs, personal
representatives, administrators, executors and permitted assigns. Nothing
contained in this Agreement is intended to confer upon any person or entity,
other than the parties hereto, or their respective successors, heirs, personal
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representatives, administrators, executors or permitted assigns, any rights,
benefits, obligations, remedies or liabilities under or by reason of this
Agreement.
(f) No waiver of any provision of this Agreement or of
any breach thereof shall be effective unless in writing and signed by the party
to be bound thereby. The waiver by either party hereto of a breach of any
provision of this Agreement, or of any representation, warranty, obligation or
covenant in this Agreement by the other party hereto, shall not be construed as
a waiver of any subsequent breach or of any other provision, representation,
warranty, obligation or covenant of such other party, unless the instrument of
waiver expressly so provides.
(g) 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 suit or proceeding arising under this
Agreement, or in connection with the consummation of the transactions
contemplated hereby, shall be brought solely in a federal or state court located
in the City, County and State of New York, except for any 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 (or any such
other court of competent jurisdiction) and agrees that any process in any 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 New York City (or in the City or County in
which such other court is located). The parties hereto each waive any claim that
any such jurisdiction is not a convenient forum for any such suit or proceeding
and any defense of lack of in personam jurisdiction with respect thereto.
Nothing in this Section 6(g) shall affect the rights of the parties hereto to
serve legal process in any other manner permitted by law.
(h) The parties hereto hereby agree that, at any time and
from time to time after the date hereof, upon the reasonable request of the
other party 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.
(i) Each party hereto represents and warrants to the
other that it or she has been represented by counsel in connection with the
negotiation, preparation, and consummation of this Agreement. Except as
expressly provided in this Agreement, each of the parties hereto shall bear all
of its or their respective costs and expenses incurred in connection with the
negotiation, preparation, execution, consummation, performance and/or
enforcement of this Agreement, including, without limitation, the fees and
disbursements of their respective counsel, financial advisors and accountants.
Notwithstanding the foregoing, in the event of any action or proceeding
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instituted by either party hereto to enforce the provisions of this Agreement,
the party prevailing therein shall be entitled to reimbursement by the other
breaching party(ies) of the legal costs and expenses incurred by the prevailing
party in connection therewith. For purposes hereof, "prevailing party" means the
party in whose favor final judgment, after appeal (if any), is rendered with
respect to the claims asserted in any such action or proceeding.
(j) This Agreement may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed an
original, but all of which when taken together, shall constitute one and the
same instrument. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for any of the other counterparts.
A copy of this Agreement signed by one party and faxed to another party shall be
deemed to have been executed and delivered by the signing party as though an
original. A photocopy of this Agreement shall be effective as an original for
all purposes.
(k) The Section headings used in this Agreement have been
used for convenience of reference only and are not to be considered in
construing or interpreting this Agreement.
(l) If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision(s) shall be excluded
from this Agreement and the balance of this Agreement shall remain in full force
and effect.
(m) No remedy set forth in this Agreement is exclusive of
any other available remedy or remedies, whether legal or equitable, but each
remedy is cumulative and in addition to every other right or remedy provided for
under this Agreement now or hereafter existing at law or in equity or by
statute. Either party hereto may pursue its rights and remedies concurrently or
in any sequence and no exercise of one right or remedy shall be deemed to be an
election. No delay by either party hereto in enforcing its rights under this
Agreement shall constitute a waiver, election or acquiescence by such party.
(n) Unless the context of this Agreement clearly requires
otherwise, the plural includes the singular, the singular includes the plural,
the part includes the whole, "including" is not limiting, and "or" has the
inclusive meaning of the phrase "and/or". The words "hereof", "herein",
"hereby", "hereunder" and other similar terms in this Agreement refer to this
Agreement as a whole and not exclusively to any particular provision of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and date first above written.
WITNESS: THE SAGEMARK COMPANIES LTD.
/s/ XXXXXX X. XXXXXXX By /s/ XXX XXXXXXXX
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Xxx Xxxxxxxx
President and Chief Executive Officer
Xxxxxx Xxxxxxx
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Print Name
WITNESS:
/s/ XXXXXX XXXXXXX /s/ XXXXXXXXX XXXXXX XXXXXXX
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Xxxxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx
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Print Name
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