EXHIBIT 10.05
MUTUAL RELEASE AND COVENANT NOT TO XXX
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This Mutual Release and Covenant Not to Xxx (the "Release") is made as
of the 2nd day of July, 2007 by and between THE SAGEMARK COMPANIES LTD., a New
York corporation with offices at 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx Xxx
Xxxx, Xxx Xxxx 00000 ("Sagemark") and XXXXXX X. XXXXXX, an individual residing
at 00 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxx Xxxx 00000 ("Bright").
WHEREAS, pursuant to a restructuring of the management of Sagemark,
Bright has agreed to resign as a member of its Board of Directors and, in
connection therewith, Sagemark and Bright have agreed to enter into this
Release, all on and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned do hereby agree as follows:
For and in consideration of Bright's resignation as a director of
Sagemark and for other good and valuable consideration, the receipt and
sufficiency of which are hereby unconditionally acknowledged:
(a) Bright, and all entities owned (in whole or in part),
controlled by, or under common control with Bright, and their respective
officers, directors, shareholders, employees, agents, consultants, heirs,
administrators, executors, personal representatives, successors and assigns
(hereinafter collectively referred to as the "Bright 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 Bright
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 right, title and interest in and to all shares of
capital stock of Sagemark, and all options or
warrants to purchase shares of capital stock of
Sagemark, owned by Bright and any affiliate of Bright
(i.e., any entity owned, in whole or in part, by
Bright) and any and all registration rights existing
as of the date hereof, or granted in the future to
any of them, with respect to such securities of
Sagemark, none of which shall be affected by this
Release; and
(ii) any claim for indemnification, contribution or for
coverage under Sagemark's officer and director
professional liability insurance policy; and
(iii) any claim against the Sagemark Releasees which cannot
be released under applicable law; and
(iv) any claim for fraud, and
(v) claims for an aggregate of $55,000 of unpaid
consulting fees.
The Bright 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 this Release.
(b) 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 Bright, and all entities owned (in whole or in part), controlled by,
or under common control with Bright, and their respective officers, directors,
shareholders, employees, counsel, agents, consultants, heirs, administrators,
executors, personal representatives, successors and assigns (hereinafter
collectively referred to as the "Bright 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 Bright 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) Any claim against the Bright Releasees which cannot
be released under applicable law; and
(ii) any claim for fraud.
The Sagemark Releasees hereby covenant and agree not to xxx any of the Bright
Releasors 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 Bright Releasees to enforce the
terms of this Release.
No provision of this Release may be amended, modified or waived except
by a written instrument executed by Bright and Sagemark.
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If any term or provision of this Release is held to be illegal or
invalid, such illegality or invalidity shall not affect the remaining terms or
provisions hereof, and each term and provision of this Release shall be enforced
to the fullest extent permitted by law.
This Release shall be binding upon each of the Bright Releasors and the
Sagemark Releasors and their respective successors and assigns, and inure to the
benefit of the Bright Releasees and the Sagemark Releasees and their respective
successors, assigns, heirs, administrators, executors and personal
representatives.
This Release may be signed in any number of counterparts, each of
which, when so executed, shall be deemed to be a binding original and all of
which, when taken together, shall constitute one and the same Release.
This Release 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 within such state, without regard to the conflicts of laws principles
thereof.
Each of the Bright Releasors and the Sagemark Releasors hereby
represents and warrants to the other that this Release has been duly authorized
by all required action of the Bright Releasors and the Sagemark Releasors, as
applicable.
This Release represents the sole and entire agreement between the
parties hereto with respect to the subject matter hereof.
In the event that any action or proceeding is commenced to enforce the
terms of this Release, the party prevailing therein shall be entitled to
reimbursement of all costs incurred by it in connection therewith, including its
counsel fees and disbursements.
IN WITNESS WHEREOF, each of the undersigned has executed this Release
as of the 2nd day of July, 2007.
WITNESS:
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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Print Name
WITNESS: THE SAGEMARK COMPANIES LTD.
/s/ XXXXXX X. XXXXXXX By: /s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx, President and
Chief Executive Officer
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