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| 8-K - CURRENT REPORT - Sanara MedTech Inc. | wndm_8k.htm |
EXHIBIT 10.1
TERMINATION AGREEMENT
This
Termination Agreement (this “Agreement”) is made and entered
into as of September 29, 2017 (the “Effective Date”), by and between
Evolution Venture Partners LLC (“EVP”) and Wound Management
Technologies, Inc. (“WNDM”). EVP and WNDM are sometimes
each referred to herein as a “Party” and collectively, as the
“Parties”.
W I T N E S E T H:
WHEREAS, EVP, WNDM and Middlebury
Securities, LLC (“Middlebury”) are parties to that
certain letter agreement, dated April 26, 2016, copy of which is
attached hereto as Exhibit
A (the “Letter
Agreement”); and
WHEREAS, pursuant to the Letter
Agreement, among other things, WNDM issued to EVP a Warrant to
Purchase Shares of Common Stock of WNDM, dated April 26, 2016, a
copy of which is attached hereto as Exhibit B (the
“Warrant”);
and
WHEREAS, WNDM has learned that
Middlebury terminated its charter on or about July 27, 2016;
and
WHEREAS, by letter dated September 22,
2017, to EVP and Middlebury, WNDM terminated the Letter Agreement;
and
WHEREAS, in order to settle and resolve
all matters between the Parties, the Parties desire to terminate
their business relationship on the terms set forth
below;
NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
1. Termination
of Letter Agreement. Effective as of September 22, 2017 (the
“Letter Agreement Termination
Date”), the Letter Agreement shall be deemed to have
been terminated and of no further force or effect. The Parties
agree that notwithstanding anything in the Letter Agreement or the
Termination Letter to the contrary, any term or provision in the
Letter Agreement that expressly survives the termination or
expiration of the Letter Agreement shall be deemed to have
terminated as of the Letter Agreement Termination
Date.
2. Termination
of Warrant. Effective as of the Effective Date, the Parties
agree that the Warrant shall be deemed to have been terminated and
of no further force or effect. Within three (3) days following the
Effective Date, EVP will deliver to WNDM the original Warrant
marked “canceled”.
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3.
Settlement Payment.
In consideration for agreeing to the provisions of this Agreement,
within three (3) days following the delivery by EVP to WNDM of the
original Warrant marked “canceled” as provided in
Section 2 above, WNDM shall issue to EVP 750,000 shares of common
stock, par value $0.001 per share, of WNDM (the “WNDM Common Stock”), it being
agreed and understood that EVP hereby instructs WNDM to issue such
shares in the following manner, (i) 500,000 shares to EVP; and (ii)
250,000 shares to John D. Lane. In consideration for being issued
such shares, EVP and John D. Lane (each, an “EVP Designee”) hereby represents
and warrant to WNDM as follows:
(a) Each
EVP Designee has received all information such EVP Designee
considers necessary or advisable to make a decision to accept the
shares of WNDM Common Stock being issued to such EVP Designee under
this Agreement (the “Subject
Shares”), and has had an opportunity to inspect
relevant documents relating to WNDM as requested by such EVP
Designee. Such EVP Designee acknowledges that all documents,
records and books pertaining to WNDM which such EVP Designee has
requested have been made available for inspection by such EVP
Designee. Such EVP Designee has had a reasonable opportunity to ask
questions of and receive answers and to request additional relevant
information from a person or persons acting on behalf of WNDM
concerning WNDM and all such questions have been answered to the
full satisfaction of such EVP Designee and such information
requested has been provided by WNDM.
(b) Each
such EVP Designee is an “accredited investor,” within
the meaning of Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended.
(c) Each
such EVP Designee acknowledges that it is acquiring the Subject
Shares for its own account and for the purpose of investment and
not with a view to any distribution or resale thereof within the
meaning of the Act, and any applicable state or other securities
laws (“State
Acts”). Such EVP Designee person further agrees that
it will not sell, assign, transfer or otherwise dispose of any of
such Subject Shares in violation of the Act or State Acts and
acknowledges that, in taking unregistered securities, it must
continue to bear the economic risk of its investment for an
indefinite period of time because of the fact that such Subject
Shares have not been registered under the Act or State Acts and
further realizes that the Subject Shares cannot be sold unless
subsequently registered under the Act and State Acts or an
exemption from such registration is available. Such EVP Designee
further agrees that WNDM is not assuming any obligation to register
the Subject Shares. Furthermore, such EVP Designee acknowledges and
agrees that the certificates evidencing the Subject Shares will
contain a legend or legend consistent with the provisions of this
subsection (c).
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4. Release.
(a) As
a material inducement to WNDM to enter into this Agreement, and
except for the covenants and agreements of WNDM provided for in
this Agreement, EVP, on its own behalf and on behalf of its
equityholders, managers, officers, affiliates, heirs, dependents,
successors and assigns, or any of them (collectively, the
“EVP Group”)
hereby irrevocably and unconditionally release, acquit and forever
discharge WNDM and its successors, assigns, agents, members,
directors, officers, employees, representatives, subsidiaries and
affiliates and all persons acting by, through, under or in concert
with any of them (collectively, the “WNDM Group”), or any of them, from
any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of
action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys’ fees and costs actually incurred), of
any nature whatsoever, known or unknown (“EVP Group Claims”) which the EVP
Group now have, own, hold, or which the EVP Group at any time
heretofore had, owned or held against any of the WNDM Group,
including, but not limited to: (i) all EVP Group Claims related to
EVP’s engagement with WNDM; (ii) all EVP Group Claims of
breach of an implied or express contract, negligent or intentional
infliction of emotional distress, libel, defamation, breach of
privacy, fraud, breach of any implied covenant of good faith and
fair dealing and any other federal, state, or local common law or
statutory claims, whether in tort or in contract; (iii) all EVP
Group Claims arising under any federal, state or local regulation,
law, code or statute; and (iv) all EVP Group Claims relating to any
agreement, arrangement or understanding that any member of the EVP
Group has, or may have, with any member of the WNDM Group (but
specifically excluding this Agreement) for anything occurring prior
to the Effective Date, including, without limitation, the Letter
Agreement and the Warrant. EVP, on its own behalf and on behalf of
the other members of the EVP Group, represents that they have not
heretofore assigned or transferred, or purported to assign or
transfer, to any person or entity, any EVP Group Claim or any
portion thereof or interest therein.
(b) As
a material inducement to EVP to enter into this Agreement, and
except for the covenants and agreements of EVP provided for in this
Agreement, WNDM, on its own behalf and on behalf of the other
members of the WNDM Group, hereby irrevocably and unconditionally
release, acquit and forever discharge the EVP Group, or any of them
(including EVP), from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies,
damages, actions, causes of action, suits, rights, demands, costs,
losses, debts and expenses (including attorneys’ fees and
costs actually incurred), of any nature whatsoever, known or
unknown (“WNDM Group
Claims”) which the WNDM Group now has, own, hold, or
which the WNDM Group at any time heretofore had, owned or held
against any member of the EVP Group, including, but not limited to:
(i) all WNDM Group Claims related to WNDM’s engagement of
EVP; (ii) all WNDM Group Claims of breach of an implied or express
contract, negligent or intentional infliction of emotional
distress, libel, defamation, breach of privacy, fraud, breach of
any implied covenant of good faith and fair dealing and any other
federal, state, or local common law or statutory claims, whether in
tort or in contract; (iii) all WNDM Group Claims arising under any
federal, state or local regulation, law, code or statute; and (iv)
all WNDM Group Claims relating to any agreement, arrangement or
understanding that any member of the WNDM Group has, or may have,
with any member of the EVP Group (but specifically excluding this
Agreement) for anything occurring prior to the Effective Date,
including, without limitation, the Letter Agreement and the
Warrant. WNDM, on its own behalf and on behalf of the other members
of the WNDM Group, represents that they have not heretofore
assigned or transferred, or purported to assign or transfer, to any
person or entity, any WNDM Group Claim or any portion thereof or
interest therein.
(c) EVP,
on its own behalf and on behalf of the other members of the EVP
Group, agrees not to make any disparaging or negative statements,
written or verbal, regarding any member of the WNDM Group at any
time in the future, whether such statement is true or false, except
as required by law or in defense of any legal action brought by any
member of the WNDM Group against any member of the EVP Group in
violation of this Agreement. WNDM, on its own behalf and on behalf
of the other members of the WNDM Group, agrees not to make any
disparaging or negative statements, written or verbal, regarding
any member of the EVP Group at any time in the future, whether such
statement be true or false, except as required by law or in defense
of any legal action brought by any member of the EVP Group against
any member of the WNDM Group in violation of this
Agreement.
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5. Representations
and Warranties. Each Party hereby represents and warrants to
each other Party that the following representations and warranties
are true and correct as of the date hereof: (a) such Party is fully
competent to execute, deliver and perform this Agreement; (ii) this
Agreement has been duly executed and delivered by such Party and
constitutes a legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors’ rights generally or the
availability of equitable remedies; and (iii) neither the
execution, delivery or performance of this Agreement nor the
consummation of the transactions contemplated hereby or thereby
will: (1) conflict with, or result in a violation or breach of the
terms, conditions or provisions of, or constitute a default under
any agreement, indenture or other instrument under which such Party
is bound or subject; or (2) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having
jurisdiction over such Party.
6. Miscellaneous.
(a) Any
notice or communication hereunder must be in writing and given by
depositing the same in the United States mail, addressed to the
Party to be notified, postage prepaid and registered or certified
with return receipt requested, or by delivering the same in person
or by email transmission. Such notice shall be deemed received on
the date on which it is hand-delivered or delivered by email
transmission, or on the third business day following the date on
which it is so mailed. For purposes of notice, the addresses of the
Parties shall be as follows:
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If to
WNDM:
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Wound
Management Technologies, Inc.
Attn: J.
Michael Carmena,
Chief
Financial Officer
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If to
EVP:
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Evolution
Venture Partners LLC
Attn:
John Andreadis
Managing
Partner
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Any
Party may change its address for notice by written notice given to
the other party in accordance with this Section.
(b) This
Agreement contains the entire agreement among the Parties relating
to the subject matter hereof and supersedes any prior agreement,
arrangement or understanding, oral or written, among the Parties
with respect to the subject matter hereof. The members of the WNDM
Group and EVP Group that are not parties to this Agreement are
deemed to be third-party beneficiaries of this
Agreement.
(c) No
alterations, amendments, waiver, or any other change in any term or
provision of this Agreement shall be valid or binding on any Party
unless the same shall have been agreed to in writing by all of the
Parties. No waiver or default of any term of this Agreement shall
be deemed a waiver of any subsequent breach or default of the same
or similar nature. This Agreement may not be changed except by
written agreement signed by both Parties.
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(d) Each
Party acknowledges that a refusal by such Party to perform any
covenant or agreement contained in this Agreement may cause
irreparable harm to one or more of the other Parties, for which
there may be no adequate remedy at law and for which the
ascertainment of damages would be difficult. Therefore, the Parties
agree that in any such case, the other Party or Parties shall be
entitled, in addition to, and without having to prove the
inadequacy of, other remedies at law, to specific performance of
this Agreement, as well as injunctive relief (without being
required to post bond or other security).
(e) In
the event it becomes necessary to bring suit to enforce any
provision of this Agreement, the prevailing Party shall be entitled
to recover, in addition to any other award, reasonable legal costs,
including court costs and attorney’s fees, from the
non-prevailing Party or Parties.
(f) If
any provision of this Agreement is held to be unenforceable or
invalid, the remaining provisions of this Agreement will remain in
effect.
(g) This
Agreement shall be governed by and construed in accordance with the
internal laws of the State of Texas, regardless of the laws that
might otherwise govern under applicable principles of conflicts of
law thereof. Each Party irrevocably submits to the exclusive
jurisdiction of the Federal District Court for the Northern
District of Texas (the “District Court”) for the purposes
of any suit, action or other proceeding arising out of this
Agreement. Each Party agrees to commence any action, suit or
proceeding relating to this Agreement in the District Court. Each
Party further agrees that service of any process, summons, notice
or document by registered mail to such Party’s respective
address set forth in Section 6(a) above shall be effective service
of process. Each Party irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement in the District Court, and hereby
further irrevocably and unconditionally waives and shall not assert
by way of motion, defense, or otherwise, in any such Proceeding,
any claim that it is not subject personally to the jurisdiction of
the District Court, that its property is exempt or immune from
attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of the proceeding is improper,
or that the Agreement may not be enforced in or by the District
Court.
(h) This
Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which shall constitute
one and the same instrument. For purposes of this Agreement, use of
a facsimile, e-mail or other electronic medium shall have the same
force and effect as an original signature.
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IN WITNESS WHEREOF, the Parties have
executed this Agreement as of the date first above
written.
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EVOLUTION VENTURE
PARTNERS LLC
By:
/s/ John
Andreadis
John
Andreadis
Managing Partner
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WOUND
MANAGEMENT TECHNOLOGIES, INC.
By:
/s/ Michael
Carmena
J. Michael
Carmena,
Chief Financial
Officer
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Each
EVP Designee hereby executes this Agreement for the purpose of
making the representations and warranties set forth in Section 3
above:
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EVOLUTION VENTURE
PARTNERS LLC
By:
/s/ John
Andreadis
John
Andreadis
Managing Partner
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/s/
John D. Lane
John D. Lane
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