EXHIBIT 99.2
SATISFACTION AND RELEASE
THIS AGREEMENT, is made this 18th day of September 2001 by and between Gemini
VII, Inc., a Delaware corporation ("Gemini"), The Sagemark Companies Ltd, a New
York corporation ("Sagemark Companies"), Xxxxx XxXxxx and Xxxxxxx Xxxxx
(collectively, "Guarantors").
RECITALS:
A. Pursuant to the terms of the Non-Negotiable Promissory Note dated November
17, 2000 from Gemini to Sagemark Companies (the "Promissory Note" a true
copy of which is attached hereto as Exhibit 1), Gemini promised to pay
Sagemark Companies the sum of $3,500,000 if and when certain events
occurred.
B. Payment under the Promissory Note was secured by a Guaranty dated November
17, 2000 by and between the Sagemark Companies and the Guarantors.
C. The parties hereto wish to settle and satisfy any uncertainty between
themselves as to the payment of the Promissory Note pursuant to the terms
and conditions contained in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties agree as follows:
1. EFFECTIVENESS. Notwithstanding any provision of this Agreement to the
contrary, this Agreement shall only become effective upon and subject
to the closing of the transactions contemplated by that certain
Purchase Agreement made as of the 18th day of September, 2001 between
Sagemark Companies and Technology Acquisitions Ltd. (the "Purchase
Agreement"), the terms of which are incorporated herein by reference
thereto. In the event that, for any reason, the Closing (as defined in
the Purchase Agreement) does not occur, this Agreement will become null
and void and without any legal force or effect and neither of the
parties hereto shall have any rights or obligations hereunder.
2. SATISFACTION OF PROMISSORY NOTE. For valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by it, subject
to the Closing under the Purchase Agreement, Sagemark Companies hereby
deems the Promissory Note fully paid and all obligations arising from
such note will be fully discharged and satisfied on the date of such
Closing.
3. RELEASE UNDER GUARANTY. For valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by it, subject to the
Closing under the Purchase Agreement, Sagemark Companies hereby
releases the Guarantors from any claims or liability related to the
Promissory Note and the Guaranty on the date of such Closing.
4. FURTHER ASSURANCES. Sagemark Companies agrees to provide any further
documents and take any other action consistent with the terms of this
Agreement that may reasonably be requested by Gemini or the Guarantors
for the purposes intended herein at the expense of the party requesting
such action.
5. MISCELLANEOUS.
a. Notices. All written notices required hereunder shall be deemed to
have been duly given when delivered by hand, facsimile
transmission or certified mail, postage prepaid, return receipt
requested, and addressed to each of Gemini, Guarantors or Sagemark
Companies at their respective addresses as provided in the
Promissory Note or at such other address as any party may
designate to the others in writing.
b. Entire Agreement: Modification: Waiver. This Agreement constitutes
the entire agreement between the parties hereto concerning the
subject matter herein and supercedes all prior agreements,
representations and all understandings of the parties with respect
thereto. No supplements, modifications or amendments to this
Agreement shall be binding unless executed in writing by Sagemark
Companies, Guarantors and Gemini. The failure of any party to this
Agreement to insist upon the performance of any of the terms and
conditions of this Agreement, or the waiver of any breach of any
of the terms and conditions of this Agreement shall not be
construed as thereafter waiving such terms and conditions, but the
same shall continue and remain in full force and effect as if no
such forbearance or waiver had occurred.
c. Attorneys Fees. In the event that any action is filed in relation
to this Agreement, the unsuccessful party in the action shall pay
to the successful party, in addition to all sums that either party
may be called on to pay, a reasonable sum for the successful
party's attorneys fees.
d. Governing Law. This Agreement shall be construed under the laws
and enforced in the courts of the State of New York.
e. Severability. The validity of any portion of this Agreement will
not and shall not be deemed to affect the validity of any other
provision. In the event that
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any provision of this Agreement is held to be invalid, the parties
hereto agree that the remaining provisions shall be deemed to be
in full force and effect.
f. Further Assurances. At any time or from time to time after the
execution of this Agreement, any party will, at the request of any
other party and at such other party's expense, execute and deliver
any further instruments or documents and take all such further
action as such party reasonably may request in order to consummate
and make effective the transactions contemplated by this
Agreement.
g. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors,
permitted assigns, heirs, executors, administrators and personal
representatives.
h. This document may be executed in counterparts.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement effective the date above first written and hereby warrant
that they have full authority vested in them to enter into this
Agreement.
The Sagemark Companies, Ltd.
By:
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Its:
Gemini VII, Inc.
By:
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Xxxxxxx Xxxxx, President
Xxxxx XxXxxx
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Xxxxxxx Xxxxx
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NON NEGOTIABLE PROMISSORY NOTE
Amount $3,500,000
November 17, 2000
Gemini VII, Inc., a corporation formed under the laws of the State of
Delaware with offices at 000 Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (herein
called the "Maker"), for good and valuable consideration, the receipt of which
is hereby acknowledged, hereby promises to pay to The Sagemark Companies, Ltd.,
a New York corporation with offices at x/x Xxxxxx Xxxxxx, Xxx., Xxxxxxx, Xxxxxxx
& Xxxxxxxx, LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (herein called the
"Payee"), the principal sum of Three Million Five Hundred Thousand Dollars
($3,500,000) (or such lesser principal amount as may be outstanding, when due)
(the "Principal"), all on and subject to the terms and conditions hereinafter
set forth:
1. Incorporation by Reference. Reference is made to that certain Stock
Purchase Agreement dated as of November 17, 2000 by and between Maker and Payee
(the "Stock Purchase Agreement") and to that certain Guaranty of even date
herewith executed by Xxxxx XxXxxx and Xxxxxxx Xxxxx (the "Guaranty"), the terms
of which are incorporated herein by reference thereto. To the extent any
capitalized terms are used but not defined herein, such terms shall have the
meanings ascribed to them in the Stock Purchase Agreement or the Guaranty.
2. Payment Terms. Maker shall pay to Payee, without set-off or deduction,
the Principal of this Note on the later of November 30, 2009 or the date of
expiration of the term of the Partnership Agreement (the "Maturity Date"),
subject to prepayment as provided in Section 3 hereof.
3. Prepayment. Notwithstanding the foregoing, Maker shall be obligated to
mandatorily prepay, without penalty or premium, the Principal of this Note
within ten (10) business days after any of such dates, if any, prior to the
Maturity Date, that (a) Sagemark Management, LLC ("SML") receives, directly or
indirectly, in accordance with the terms of that certain Agreement of Limited
Partnership dated November 30, 1999 (the "Partnership Agreement") of Sagemark
Capital LP (the "Partnership"), any distributions from the Partnership (but only
in such amounts as shall be equal to the amounts of any such distributions to
SML, less the amount of all applicable Federal, state and local taxes computed
at the maximum applicable tax rate (i.e., the maximum Federal tax rate is
currently 39.8%) and any amounts, if any, paid to Xxxxx Xxxx (or his designee)
by SML solely from such distributions (the "Xxxxx Deduction") if Xxxxx Xxxx (or
his designee) hereafter becomes a member of SML, divided by 2, provided that the
Xxxxx Deduction does not exceed 33-1/3% of the amount of any such
distributions), or (b) Maker receives the proceeds from the sale of any or all
of the shares of capital stock of Xxxxxxxx.xxx, Inc. or JewelersEdge, Inc. owned
by Maker to the full extent of any such proceeds, less the amount of all
applicable taxes. Maker may prepay this Note, in whole or in part, and from time
to time prior to the Maturity Date, without penalty or premium. This Note shall
be non-interest bearing and, notwithstanding any provision of this Note or the
Stock
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Purchase Agreement or the Guaranty to the contrary, the Principal of this Note
shall be reduced on the Maturity Date by an amount equal to and measured by
$3,500,000, less the aggregate amount of all such distributions and sales
proceeds which are referred to in clauses 3(a) and 3(b) above (i.e., there will
be no amounts due under this Note if, on the Maturity Date, there have been no
such distributions or sales proceeds prior to such Maturity Date).
NOTWITHSTANDING ANY OTHER PROVISION OF THIS NOTE TO THE CONTRARY, THE
OBLIGATIONS OF MAKER AND THE GUARANTORS HEREUNDER SHALL BE WITH RECOURSE TO
MAKER AND THE GUARANTORS ONLY TO THE EXTENT OF ANY NON-PAYMENT OF THE PRINCIPAL
OF THIS NOTE AS A RESULT OF A BREACH OF THE MANDATORY PREPAYMENT PROVISIONS SET
FORTH IN THIS PARAGRAPH.
4. Place and Manner of Payment. All payments of Principal under this Note
shall be made to Payee on or before the due date thereof (except with respect to
the mandatory prepayments of Principal described in Section 2 hereof which shall
be due and payable as provided therein with respect thereto) at Payee's address
set forth above or at such other address or to such other bank account of Payee
as Payee may, from time to time, designate in writing to Maker prior to the due
date of any such payment. If any payment hereunder becomes due on a Saturday,
Sunday or legal holiday, such payment shall become due on the next business day.
5. Waiver of Presentment, Demand and Notice. Maker hereby waives
presentment for payment, demand, notice of demand, notice of non-payment or
dishonor, protest and notice of protest of this Note, and all other notices in
connection with the delivery, acceptance, performance, default, or enforcement
of the terms of this Note (except as specifically provided elsewhere in this
Note) and Maker hereby agrees that the liability under this Note shall be
without regard to the liability of any other party, including the Guarantors or
any other guarantor of this Note, and shall not be affected in any manner by any
indulgence, extension of time, renewal, waiver or modification granted or
consented to by Payee. Maker hereby agrees that additional makers, endorsers,
guarantors or sureties may become parties to this Note without notice to Maker
and without affecting Maker's liability hereunder.
6. Remedies Cumulative. The rights and remedies of Payee provided in this
Note shall be cumulative and concurrent and exclusive of all rights and remedies
provided by law or in equity and Payee may, at its election, pursue its rights
and remedies hereunder or thereunder, singly, successively, or together, at the
sole discretion of Payee, and all of such rights and remedies may be exercised
separately as often as occasion therefor shall occur. The failure of Payee to
exercise any such right or remedy shall in no event be construed as a waiver or
release thereof.
7. Severability; Lawful Interest. If any provision of this Note is held to
be invalid or unenforceable by a court of competent jurisdiction, the other
provisions of this Note shall remain in full force and effect and shall be
unaffected thereby.
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8. No Waiver by Payee. Payee shall not be deemed, by any act of omission
or commission, to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by Payee, and then only to the extent
specifically set forth in any such writing. A waiver of one event shall not be
construed as continuing or constitute a bar to or waiver of any right or remedy
with respect to a subsequent event.
9. Modification; Governing Law. The provisions of this Note represent the
entire agreement and understanding of Maker and Payee with respect thereto
(except for the applicable provisions of the Stock Purchase Agreement) and may
not be modified or amended except by an instrument in writing signed by the
party to be bound thereby. To the extent that there is any inconsistency between
the terms of this Note and the terms of the Stock Purchase Agreement, the terms
of this Note shall govern and be controlling. This Note and the respective
rights and obligations of Maker and Payee hereunder 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 and without regard to the
principles of conflicts of laws thereof. The parties hereto hereby agree that
any suit or proceeding arising under or as a result of this Agreement, the
Guaranty or the consummation of the transactions contemplated hereby, shall be
brought solely in a Federal or state court located in the County of New York,
State of New York. By their execution hereof, the parties hereto irrevocably
consent and submit to the in personam jurisdiction of the Federal and state
courts located in the County of New York, State of New York, and agree 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, addressed to the Maker and Payee at their respective
addresses set forth on the first page of this Agreement (and to the Guarantors
at their respective addresses set forth in the Guaranty) (or at such other
address as either Maker, Payee or the Guarantors may notify the other of, in
writing), or by a nationally recognized overnight courier service which provides
evidence of delivery, with the same force and effect as if personally served
upon them in such county and state. Maker and Payee each waive any claim that
any such jurisdiction is not a convenient forum, or that there is another more
convenient forum, for any such suit or proceeding and any defense of lack of in
personam jurisdiction with respect thereto.
10. Notices. All notices, consents, requests, demands and other
communications required or permitted to be given under this Note shall be in
writing and delivered to Maker or the Guarantors personally, receipt
acknowledged, or mailed by registered or certified mail, postage prepaid, return
receipt requested, addressed to Maker or the Guarantors at their respective
addresses referred to in Paragraph 8 above. 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.
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11. Binding Effect. This Note shall be binding upon Maker and the
Guarantors and their respective heirs, personal representatives, successors and
assigns and shall inure to the benefit of Payee and its successors and assigns.
Maker shall not have the right to assign this Note, or any of its obligations
hereunder, without the written consent of Payee.
12. Further Assurances. Maker hereby agrees that, at any time and from
time to time after the date hereof, upon the reasonable request of Payee and at
Payee's expense, it 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 Note or the Guaranty or to confirm
or otherwise effectuate the provisions of this Note or the Guaranty.
13. Collection Costs. In the event that any action or proceeding is
instituted to enforce the provisions of this Note, the party prevailing therein
shall be entitled to reimbursement of its reasonable costs in connection
therewith (including its reasonable counsel fees and disbursements). In
addition, in such event, if the Payee prevails in any such action or proceeding,
it shall also be entitled to receive interest at the rate of 10% per annum from
the date of Maker's default to the date of payment, only on such portion of the
unpaid Principal of this Note which is in default.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has
caused this Note to be signed and dated the day and year above written.
WITNESS: GEMINI VII, INC.
By:
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Xxxxxxx Xxxxx, President
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