TERMINATION AGREEMENT
Exhibit
10.05
AGREEMENT
made this 15th
day of
April, 2008 by and between XXXXXXX
XXXXXX, M.D.
(“Employee”)
and
THE
SAGEMARK COMPANIES LTD.
(“Sagemark”).
WITNESSETH:
WHEREAS,
Employee
and Sagemark are parties to that certain Employment Agreement dated October
25,
2005, as amended (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.
(a)
Effective March 1, 2008, the Employment Agreement will be deemed terminated
and
no longer in force or effect (except to the extent expressly provided for
herein).
(b)
Upon
the
execution of this Agreement, Employee will return to the Company all files
and
personal property of the Company in his possession or under his control.
(c)
From
and
after the date hereof, Employee will provide reasonable cooperation and
assistance to Sagemark in the event that any claim is made against Sagemark
or
its affiliates in connection with the activities of the positron emission
tomography centers (the “PET
Centers”)
owned
and/or managed by Sagemark or its affiliates in the State of
Florida.
2.
Mutual
Releases.
(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 (including Premier P.E.T. Imaging International, Inc.),
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, the Employment Agreement and Employee’s
employment thereunder, from the beginning of the world to and including the
date
hereof, except for:
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(i)
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All
representations, warranties, covenants and obligations of Sagemark
under
this Agreement; and
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(ii)
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all
right, title and interest in and to the Warrant dated October 25,
2005
entitling Employee to purchase up to 500,000 shares of common stock
of
Sagemark; and
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(iii)
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any
claim for indemnification, contribution or for coverage under the
Employment Agreement or pursuant to Sagemark’s officer and director
professional liability insurance policy; and
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(iv)
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any
claim against the Sagemark Releasees which cannot be released under
applicable law; and
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(v)
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any
claim for fraud.
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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, or 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, the Employment Agreement and Employee’s
employment thereunder, from the beginning of the world to and including the
date
hereof, except for:
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(i)
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All
representations, warranties, covenants and obligations of Employee
under
this Agreement; and
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(ii)
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the
confidentiality and non-disclosure covenants contained in Section
7 of the
Employment Agreement; and
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(iii)
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the
non-competition and non-solicitation covenants contained in Section
8 of
the Employment Agreement, except that the non-competition covenant
contained therein shall only apply during the Applicable Period and
within
the geographic area described therein with respect to a PET Center
owned
or managed by Sagemark or its affiliates in the State of Florida;
and
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(iv)
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any
claim against the Employee Releasees which cannot be released under
applicable law; and
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(v)
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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, or 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 Sections
7
and 8 of the Employment Agreement shall survive the termination thereof and
remain in full force and effect in accordance with the provisions of such
Sections.
5.
Representations
and Warranties.
(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.
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6. Miscellaneous.
(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.
(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):
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(i)
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If
to Sagemark, to it at:
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1285
Avenue of the Xxxxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
Xxx Xxxxxxxx, President and Chief Executive Officer
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with
a copy to:
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Xxxxxx
X. Xxxxxxx, Esq.
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00
Xxxx Xxxxx Xxxx
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Xxxxxxx,
Xxx Xxxx 00000
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(ii)
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If
to Employee:
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Xxxxxxx
Xxxxxx, M.D.
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000
X. Xxxxxxxx Xxxxx
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Xxxxx
Xxxxx, Xxxxxxx 00000
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with
a copy to:
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Xxxxxx
X. Xxxxxxxx XX
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Xxxxxxx
& Xxxxxxx
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Three
Xxxxx Center, 12th
Floor
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0000
X. Xxxx Xxxxxx
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Xxxxxxxx,
XX 00000
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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 nor obligations hereunder without the written consent of the other
Party 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 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.
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(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 he 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 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.
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(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.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the year and date first above
written.
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WITNESS:
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/s/ Xxx Xxxxxxxx
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By
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/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
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President and Chief Executive Officer
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WITNESS:
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/s/ Xxxxxxxxx X. Eagles
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/s/
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Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx, M.D.
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