TERMINATION AGREEMENT
This Termination Agreement is made as of April 17, 1998, between
Aquagenix, Inc., a Delaware Corporation ("Aquagenix"), and Xxxxxx Xxxxx, Xx.
("Xxxxx").
BACKGROUND. Aquagenix and Xxxxx are parties to a Stock Purchase
Agreement, dated as of November 30, 1997, as amended (the "Purchase Agreement"),
with respect to the stock of Xxxxx Tree Service, Inc., a New York corporation
(the "Company"). Aquagenix, Xxxxx and Xxxxxx Beach & Xxxxxx, LLP, as escrow
agent ("Escrow Agent") are parties to an Amended and Restated Escrow Agreement,
dated November 30, 1997, as amended (the "Escrow Agreement"). Aquagenix and
Xxxxx have agreed to terminate the Purchase Agreement and the Escrow Agreement
and agreed upon the distribution of the Escrow Amount (as defined in the Escrow
Agreement). Capitalized terms used in this agreement without definition shall
have the respective meanings given to them in the Purchase Agreement.
The parties, intending to be legally bound, agree as follows:
1. Termination of Purchase Agreement. The Purchase Agreement is hereby
terminated pursuant Section 9.1(c) of the Purchase Agreement. As provided in
Section 9.2 of the Purchase Agreement, the obligations of the parties under
Section 11.3 of the Purchase Agreement survive this termination. Aquagenix
agrees to return, or cause its Representatives to return, promptly to the
Company all information, regardless of the form in which it was communicated or
maintained (whether prepared by the Company or otherwise) that contains or
otherwise reflects information concerning the Company that Aquagenix or its
Representatives were furnished by or on behalf of the Company ("Furnished
Material") and to destroy, or cause to be destroyed, all reports, analyses,
notes or other information, whether prepared by Aquagenix, its Representatives,
or others, that are based on, contain or reflect any Furnished Material
("Notes"). Notwithstanding the return or destruction of Furnished Material and
Notes, Aquagenix and its Representatives will continue to be bound by its
obligations of confidentiality and other obligations under Section 11.3 of the
Purchase Agreement.
2. Distribution of Escrow Agreement. Escrow Agent is hereby directed to
liquidate any portion of the Escrow Amount consisting of investments as promptly
as reasonably practicable, to remit $1,250,000 of the Escrow Amount to Xxxxx by
wire transfer of immediately available funds to an account to be designated in
writing by Xxxxx, and to remit the balance of the Escrow Amount to Aquagenix by
wire transfer of immediately available funds to an account to be designated in
writing by Aquagenix.
3. Termination of Escrow Agreement. The Escrow Agreement is hereby
terminated effective upon consummation of the wire transfers referred to in
Section 2 of
this Agreement. As provided in Section 2.5 of the Escrow Agreement, the
provisions of Sections 2.2 and 2.5 of the Escrow Agreement survive this
termination.
4. Aquagenix Release.
4.1 Aquagenix, on behalf of itself and each of its Related Persons,
hereby releases and forever discharges Xxxxx, the Company and the Escrow Agent,
and each of their respective individual, joint or mutual Representatives,
affiliates, stockholders, partners, controlling persons, successors and assigns
(individually, an "Aquagenix Releasee" and collectively "Aquagenix Releasees")
from any and all claims, demands, Proceedings, causes of action, Orders,
obligations, contracts, agreements, debts and liabilities whatsoever, whether
known or unknown, suspected or unsuspected, both at law and in equity, which
Aquagenix or any of its Related Persons now has, have ever had or may hereafter
have against the respective Aquagenix Releases on account of, or arising out of
any matter, cause or event relating to, the Purchase Agreement or the Escrow
Agreement or the transactions contemplated thereby, whether pursuant to contract
or otherwise; provided, however, that nothing contained herein shall operate to
release any obligations or Xxxxx under this Agreement or any provision of the
Purchase Agreement or the Escrow Agreement that survives this Agreement.
4.2 Aquagenix hereby irrevocably covenants to refrain from, directly
or indirectly, asserting any claim or demand, or commencing, instituting or
causing to be commenced, any proceeding or any kind against any Aquagenix
Releasee, based upon any matter purported to be released hereby.
4.3 Without in any way limiting any of the rights and remedies
otherwise available to any Aquagenix Releasee, Aquagenix shall indemnify and
hold harmless each Aquagenix Releasee from and against all loss, liability,
claim, damage or expense (including costs of investigation and defense and
reasonable attorney's fees) whether or not involving third party claims, arising
directly or indirectly from or in connection with (i) the assertion by or on
behalf of Aquagenix or any of its Related Persons of any claim or other matter
purported to be released pursuant to this Section 4 and (ii) the assertion by
any third party of any claim or demand against any Aquagenix Releasee which
claim or demand arises directly or indirectly from, or in connection with, any
assertion by or behalf of Aquagenix or any of its Related Persons against such
third party of any claims or other matters purported to be released pursuant to
this Section 4.
5. Xxxxx Release.
5.1 Xxxxx, on behalf of himself and each of his Related Persons,
hereby releases and forever discharges Aquagenix and the Escrow Agent, and of
each their respective individual , joint or mutual Representatives, affiliates,
stockholders, partners, controlling person, successors and assigns
(individually, a "Xxxxx Releasee" and collectively, "Xxxxx Releasees") from any
and all claims, demands, Proceedings, causes
2
of action, Orders, obligations, contracts, agreements, debts and liabilities
whatsoever, whether known or unknown, suspected or unsuspected, both at law and
in equity, which Aquagenix or any of its Related Persons now has, have ever had
or may hereafter have against the respective Xxxxx Releasees on account of, or
arising out of any matter, cause or event relating to, the Purchase Agreement or
the Escrow Agreement or the transactions contemplated thereby, whether pursuant
to contract or otherwise; provided, however, that nothing contained herein shall
operate to release any obligations of Xxxxx under this Agreement or any
provision of the Purchase Agreement or the Escrow Agreement that survives this
Agreement.
5.2 Xxxxx hereby irrevocably covenants to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against any Xxxxx Releasee, based
upon any matter purported to be released hereby.
5.3 Without in any way limiting any of the rights and remedies
otherwise available to any Xxxxx Releasee, Xxxxx shall indemnify and hold
harmless each Xxxxx Releasee from and against all loss, liability, claim, damage
or expense (including costs of investigation and defense and reasonable
attorney's fees) whether or not involving third party claims, arising directly
or indirectly from or in connection with (i) the assertion by or on behalf of
Xxxxx or any of his Related Persons of any claim or other matter purported to be
released pursuant to this Section 5 and (ii) the assertion by any third party of
any claim or demand against any Xxxxx Releasee which claim or demand arises
directly or indirectly from, or in connection with, any assertion by or on
behalf of Xxxxx or any of his Related Persons against such third party of any
claims or other matters purported to be released pursuant to this Section 5.
6. Public Announcements. Any public announcement or similar publicity
with respect to this Agreement shall be subject to the approval of both
Aquagenix and Xxxxx, which shall not be unreasonably withheld. Except for such
public announcement, unless consented to by Xxxxx in advance or required by
Legal Requirements, Aquagenix shall, and shall cause its Related Persons to,
keep this Agreement strictly confidential and may not make any disclosure of
this Agreement to any Person.
7. Entire Agreement and Modification. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This Agreement may not
be amended except by a written agreement executed by the party to be charged
with the amendment.
8. Assignments, Successors, and Third-Party Rights. Neither party may
assign any of its rights under this Agreement without the prior consent of the
other party, except that Xxxxx xxx assign any of his rights under this Agreement
to the Company. Subject to the preceding sentence, this Agreement will apply to,
be binding in all
3
respects upon, and inure to the benefit of the successors and permitted assigns
of the parties, the Escrow Agent, the Aquagenix Releasees and the Xxxxx
Releasees.
9. Severability. If any provisions of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
10. Governing Law. This Agreement will be governed by the laws of the
State of New York without regard to conflicts of laws principles.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the date first written above.
AQUAGENIX, INC.
By:/s/ Xxxxxx Xxxxxxx
-------------------
Xxxxxx X. Xxxxxxx
Chairman
/s/ Xxxxxx Xxxxx, Xx.
----------------------
XXXXXX XXXXX, XX.
4
