|
EXHIBIT 10.8
EXECUTION COPY
SETTLEMENT AND RELEASE AGREEMENT
--------------------------------
This SETTLEMENT AND RELEASE AGREEMENT ("Agreement") is made as
of the
13th day of August, 2007 (the "Effective Date"), by and between
THE SAGEMARK
COMPANIES LTD. ("Sagemark") and TRIDENT ADVISORS, INC.
("Trident").
W I T N E S S E T H :
---------------------
WHEREAS, Sagemark and Trident entered into that certain
Purchase
Agreement on November 9, 2005 (as amended, the "Purchase
Agreement"), pursuant
to which Sagemark sold to Trident the 24.1% Limited Partnership
Interest (the
"LP Interest") owned by Sagemark in Trident Growth Fund, L.P.
("Trident
Growth"), for a total purchase price of Two Million Five Hundred
Seventy
Thousand Dollars ($2,570,000.00) (the "Purchase Price");
WHEREAS, pursuant to and upon the execution of the Purchase
Agreement,
Trident paid to Sagemark Six Hundred Twenty-Five Thousand
Dollars ($625,000.00)
and issued and delivered to Sagemark a Secured Promissory Note
(the "Note") in
the principal amount of One Million Nine Hundred Forty Five
Thousand Dollars
($1,945,000.00), which amount represented the then balance of
the Purchase
Price;
WHEREAS, pursuant to the terms of the Note, Trident granted to
Sagemark
a first priority lien and security interest (the "Security
Interest") in the LP
Interest, as collateral security for Trident's obligation to
make full and
timely payment of the principal amount of the Note and accrued
interest thereon;
WHEREAS, Trident has paid Sagemark an additional amount of
Seventy-Five
Thousand Dollars ($75,000.00) pursuant to the Note, as a result
of which the
balance of such Purchase Price due to Sagemark as of the date
hereof is One
Million Nine Hundred Eighty Six Thousand Four Hundred Seventy
Eight Dollars
($1,986,478.00), inclusive of both principal and accrued
interest thereon; and
WHEREAS, Trident has offered to pay to Sagemark, and Sagemark
has
agreed to accept from Trident, the sum of One Million Dollars
($1,000,000.00)
(the "Discounted Purchase Price") in full and final payment of
all amounts due
under the Note and in full and final satisfaction of all
obligations of Trident
under the Purchase Agreement, 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:
<PAGE>
1. Incorporation by Reference. The terms of the Purchase
Agreement and the Note are incorporated herein by reference
thereto. All
capitalized terms which are used but not defined herein shall
have the meanings
ascribed to them in the Purchase Agreement and/or the Note.
2. Payment of Discounted Purchase Price. Notwithstanding any
provision of the Purchase Agreement or the Note to the contrary,
by execution of
this Agreement, Trident agrees to pay, and Sagemark agrees to
accept, in full
and final payment of all amounts due under the Note and in full
and final
satisfaction of all obligations of Trident under the Purchase
Agreement (except
as provided in this Agreement), the Discounted Purchase Price,
payable as
follows:
a. Seven Hundred Seventy-Five Thousand Dollars
($775,000.00), payable contemporaneously with the
execution of this Agreement; and
b. Two Hundred Twenty-Five Thousand Dollars
($225,000.00), payable on or before October 31, 2007
(the "Deferred Payment").
All amounts payable to Sagemark hereunder shall be paid by wire
transfer at:
Bank of America
ABA # [REDACTED]
For Further Credit To:
The Sagemark Companies Ltd.
Account # [REDACTED]
3. Termination of Security Interest. Trident hereby covenants
not
to encumber the LP Interest prior to Sagemark's receipt of the
Discounted
Purchase Price. Trident and Sagemark hereby agree that subject
to and upon full
and final payment of the Discounted Purchase Price, (a)
Sagemark's Security
Interest in the LP Interest shall be immediately and
automatically terminated
and be of no further force or effect, and Sagemark hereby
authorizes Trident and
any of its agents or representatives to prepare and file any
Uniform Commercial
Code termination statements or such other documents and
instruments as are
necessary to evidence such termination (copies to be provided to
Sagemark); (b)
Sagemark shall promptly deliver any and all originals of the
Note to Trident;
and (c) any and all debts and obligations of Trident under the
Purchase
Agreement and/or the Note shall be immediately and automatically
released
(except as provided in this Agreement).
4. Default. Notwithstanding any provision in the Purchase
Agreement and/or the Note to the contrary, in the event that
Trident fails to
pay the Deferred Payment to Sagemark on or before October 31,
2007, all amounts
paid hereunder shall be applied to the then outstanding balance
of the Note as
of the date of such payment, and the remaining outstanding
balance under the
Note shall be accelerated and shall be immediately due and
payable in accordance
with the provisions thereof.
2
<PAGE>
5. Mutual Releases.
---------------
(a) In consideration of the covenants and agreements set
forth in this Amendment, and for other good and valuable
consideration, the
receipt and sufficiency of which are hereby acknowledged,
Sagemark, for itself
and its subsidiaries, successors-in-interest, representatives,
agents and
assigns (collectively, the "Sagemark Releasors") hereby r
| 
