TERMINATION AGREEMENT AND MUTUAL RELEASE
TERMINATION
AGREEMENT AND MUTUAL RELEASE
This
Termination Agreement and Mutual Release (this “Agreement”),
dated
as of April 3, 2008, is entered into by and between Xxxxx Co., a California
corporation (“Xxxxx”)
and
NTR Acquisition Co., a Delaware corporation (“NTR,”
and
together with Xxxxx, the “parties,”
and
each, a “party”).
WHEREAS,
Xxxxx and NTR on November 2, 2007, entered into a Stock Purchase Agreement
(the
“Stock
Purchase Agreement”)
for
the sale by Xxxxx to NTR of all of the issued and outstanding shares of capital
stock of Xxxx Oil & Refining Co., a California corporation (“Xxxx”),
Casey’s wholly owned subsidiary; and
WHEREAS,
Xxxxx and NTR now wish to terminate the Stock Purchase Agreement and the other
Transaction Documents (as defined below) and enter into a mutual release of
all
claims arising out of or otherwise related thereto, on the terms and subject
to
the conditions of this Agreement;
NOW
THEREFORE, in consideration of the foregoing premises, the representations,
warranties and covenants set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereby agree as follows:
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1.
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Certain
Definitions.
As
used herein,
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“Affiliate”
means,
with respect to any Person, any other Persons directly or indirectly
controlling, controlled by or under common control with, such Person as of
the
date on which, or at any time during the period for which, the determination
of
affiliation is being made.
“Xxxxx
Released Parties”
means
Casey, Kern, and each of their respective Affiliates and their present and
former directors, officers, managers, control persons, stockholders,
beneficiaries, members, employees, representatives and agents (as applicable),
and any successors and assigns thereof.
“Escrow
Agent”
means
Fiduciary Trust International of California, a California
corporation.
“Escrow
Agreement”
means
the Escrow Agreement among Xxxxx, NTR and the Escrow Agent dated as of November
2, 2007.
“NTR
Released Parties”
means
NTR and each of its Affiliates and their present and former directors, officers,
managers, control persons, stockholders, beneficiaries, members, employees,
representatives and agents (as applicable), and any successors and assigns
thereof.
“Person”
means
an individual, a corporation, a limited liability company, a partnership, an
association, trust or any other entity or organization.
“Transaction
Documents”
means
the Stock Purchase Agreement and any agreement, instrument or other document
executed and delivered by Xxxxx or any of its Affiliates, on the one hand,
and
NTR or any of its Affiliates, on the other hand, in connection with, arising
out
of or otherwise relating to the Stock Purchase Agreement, other
than
this
Agreement, the Escrow Agreement, that certain Confidentiality and Non Disclosure
Agreement, dated June 29, 2007 (the “Non
Disclosure Agreement”),
and
the Trust Waivers.
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“Trust
Waivers”
means
the letters addressed to NTR by each of Xxxxx and Xxxx dated November 2, 2007,
containing a waiver of claims against, and any recourse to, monies in the Trust
Account (as defined in Section 6 below).
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2.
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Termination.
Effective as of the date hereof, the parties agree that the Stock
Purchase
Agreement and each of the other Transaction Documents is hereby
terminated, null and void ab
initio
and shall be of no further force and effect whatsoever, except and
unless
as otherwise set forth herein, and no party under the Stock Purchase
Agreement or any other Transaction Document shall have any continuing
rights or obligations in connection therewith or be entitled to any
further benefits thereunder; provided,
however,
that nothing contained in this Agreement shall constitute a waiver,
release or termination of any rights to enforce the terms of this
Agreement; provided,
further,
that nothing herein shall or shall be deemed to terminate the Non
Disclosure Agreement, which shall survive in accordance with its
terms, or
the Trust Waivers.
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3.
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Termination
Fee.
Upon execution of this Agreement, NTR and Xxxxx shall execute and
deliver
to the Escrow Agent written instructions for the immediate release
to
Xxxxx of the Deposit (as defined in the Escrow Agreement), without
condition. Upon disbursement by the Escrow Agent of the Deposit,
the
Escrow Agreement shall terminate in accordance with its terms.
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4.
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Release
of NTR Released Parties.
Xxxxx hereby fully and finally releases and discharges each of the
NTR
Released Parties from any and all actions, causes of action, accounts,
agreements, bonds, bills, covenants, contracts, controversies, claims,
damages, demands, debts, dues, extents, executions, judgments,
liabilities, obligations, promises, predicate acts, reckonings,
specialties, suits, sums of money, trespasses and variances whatsoever,
whether known or unknown, whether absolute, matured, contingent or
otherwise, in law or equity (collectively, “Claims”),
that Xxxxx or any of the Xxxxx Released Parties ever had or now has
or
have against any of the NTR Released Parties, for, upon, or by reason
of
any matter, cause or thing whatsoever, from the beginning of the
world to
the day of the date of this Agreement, except for any Claims arising
under
this Agreement. Xxxxx further agrees that it will not file or permit
to be
filed on its behalf any such Claim, including by any of the Xxxxx
Released
Parties. This release is for any and all relief, no matter how
denominated, including, without limitation, injunctive relief,
compensatory damages, and punitive
damages.
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5.
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Release
of Xxxxx Released Parties.
NTR hereby fully and finally releases and discharges each of the
Xxxxx
Released Parties from any and all Claims that NTR or any of the NTR
Released Parties ever had or now has or have against any of the Xxxxx
Released Parties, for, upon, or by reason of any matter, cause or
thing
whatsoever, from the beginning of the world to the day of the date
of this
Agreement, except for any Claims arising under this Agreement. NTR
further
agrees that it will not file or permit to be filed on its behalf
any such
Claim, including by any of the NTR Released Parties. This release
is for
any and all relief, no matter how denominated, including, without
limitation, injunctive relief, compensatory damages, and punitive
damages.
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6.
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Waiver
of Trust Claims.
Xxxxx understands that NTR is a blank check company formed for the
purpose
of acquiring, through a merger, capital stock exchange, asset acquisition,
stock purchase, reorganization or other similar business combination
(an
“initial business combination”) one or more businesses or assets in the
energy industry. Xxxxx further understands that the NTR’s sole assets
consist of the cash proceeds of its initial public offering (the
“IPO”)
and private placements of its securities, and that substantially
all of
those proceeds have been deposited in a trust account with a third
party
(the “Trust Account”) for the benefit of NTR, certain of its stockholders
and the underwriters of its IPO. The monies in the Trust Account
may be
disbursed only (1) to NTR in limited amounts from time to time (and
in no
event more than $3,250,000 in total) in order to permit NTR to pay
its
operating expenses; (2) if NTR completes an initial business combination,
to certain dissenting public stockholders, to the underwriters in
the
amount of underwriting discounts and commissions they earned in the
IPO
but whose payment they have deferred, and then to NTR; and (3) if
NTR
fails to complete an initial business combination within the allotted
time
period and liquidates, subject to the terms of the agreement governing
the
Trust Account, to NTR in limited amounts to permit NTR to pay the
costs
and expenses of its liquidation and dissolution, and then to NTR’s public
stockholders (as such term is defined in the agreement governing
the Trust
Account). Notwithstanding anything to the contrary set forth herein,
Xxxxx
hereby agrees to waive, and to cause Xxxx and each of the other Xxxxx
Released Parties to waive, any right, title, interest or Claim it
or any
of them has or may have in the future in or to any monies in the
Trust
Account and not to seek recourse against the Trust Account or any
funds
distributed therefrom (except amounts released to NTR as described
in
clause (1) of the preceding sentence) as a result of, or arising
out of,
any Claims against NTR. Xxxxx hereby irrevocably waives, and agrees
to
cause Xxxx and each of the other Xxxxx Related Parties to waive,
to the
fullest extent permitted by applicable law, any and all right to
trial by
jury in any legal proceeding arising out of or relating to this Section
6
or any Claim subject hereto.
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7.
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Ownership
of Released Claims; Waiver of Rights.
Each party represents and warrants to the other that no other Person
has
any interest in any Claims released by this Agreement, and that they
have
not sold, assigned, transferred, pledged, conveyed or otherwise disposed
of any claims released by this Agreement. As to all Claims released
herein, each of the parties hereby expressly waives, to the fullest
extent
permissible under law, any and all rights they may have or claim
to have
under any provision of law that in any way limits the terms of a
release
to Claims which the parties are aware of at the time of the execution
of
the release. In connection with such release, the parties acknowledge
that
they are aware that they may hereafter discover Claims presently
unknown
or unsuspected, or facts in addition to or different from those which
they
now know or believe to be true, with respect to the matters released
herein. Nevertheless, it is the intention of the parties fully, finally
and forever to release all matters released herein. In furtherance
of such
intention, this release shall be and remain in effect as a full and
complete release of such matters notwithstanding the discovery or
existence of any such additional or different Claims or facts relative
thereto. Each party hereby acknowledges that it has read and is familiar
with California Civil Code Section 1542, which states as follows:
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“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH
THE DEBTOR.”
Each
of
the parties hereby expressly waives and relinquishes all rights and benefits
that it has or may have under California Civil Code Section 1542 (or any similar
law of any other country, state, territory or jurisdiction) to the fullest
extent that it may lawfully waive such rights and benefits.
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8.
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Representations
and Warranties.
Each of Xxxxx and NTR hereby represents and warrants to the other
that (a)
it is validly existing and in good standing under the laws of the
jurisdiction in which it was duly organized; (b) it has all requisite
corporate power to execute and deliver this Agreement and to carry
out and
perform its obligations under the terms hereof; (c) its execution
and
delivery of this Agreement have been duly authorized by all necessary
action on its part and that the officer, representative or other
agent
executing and delivering this Agreement on its behalf has the power
and
authority to do so and to bind it to the terms and conditions of
this
Agreement; (d) this Agreement constitutes a legal, valid and binding
obligation of such party hereto, enforceable against such party hereto
in
accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of creditors’ rights
generally and to general principles of equity;
and (e) there are no other agreements between Xxxxx or any of its
Affiliates, on the one hand, and NTR or any of its Affiliates, on
the
other hand, other than the Transaction Documents, the Escrow Agreement,
the Non Disclosure Agreement and the Trust Waivers.
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9.
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Governing
Law.
This Agreement and any dispute hereunder shall be governed by and
construed in accordance with the laws of the State of California,
without
regard to its conflicts of law doctrine. The prevailing party in
any
dispute shall be entitled to all expenses, including attorneys’ fees and
costs, incurred in connection with any dispute hereunder. The parties
hereby irrevocably submit and agree to the exclusive jurisdiction
and
venue of the courts of the State of California located in the County
of
Xxxx or the federal courts located in the County of Fresno. The provisions
of this Section 9 may be enforced by any court of competent
jurisdiction.
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10.
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Third-Party
Beneficiaries; Assignment.
The parties acknowledge and agree that each of the Xxxxx Released
Parties
and each of the NTR Released Parties shall be third-party beneficiaries
of
this Agreement for purposes of relying upon and enforcing the release
and
discharge of the parties pursuant to Sections 4 and 5 above. All
rights
and obligations hereunder shall not be assignable without the prior
written consent of the other party.
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11.
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Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any
jurisdiction shall, as to that jurisdiction, be ineffective to the
extent
of that prohibition or unenforceability without invalidating the
remaining
provisions hereof or affecting the validity or enforceability of
that
provision in any other jurisdiction.
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12.
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Counterparts.
This Agreement may be so executed in any number of counterparts,
each of
which when so executed and delivered shall be deemed an original,
and all
of which, taken together, shall constitute one and the same agreement.
Electronic delivery of an executed counterpart shall be effective
as
delivery of a manually executed
counterpart.
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13.
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Entire
Agreement.
This Agreement, together with the Escrow Agreement, the Non Disclosure
Agreement and the Trust Waivers, constitutes the entire agreement
of the
parties hereto with respect to the subject matter hereof, and, except
with
respect to the Escrow Agreement, supersedes all prior discussions,
agreements and understandings of the parties hereto with respect
to such
subject matter, including without limitation the Transaction Documents.
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14.
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Amendment.
This Agreement shall not be amended, supplemented, rescinded or otherwise
modified, nor may any provision hereof be waived or terminated, except
by
a written instrument signed by each of the parties
hereto.
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[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
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XXXXX
CO.
By:
/s/ Xxxxx
X. Xxxxxx, Xx.
Name:
Xxxxx X. Xxxxxx, Xx.
Title:
President
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By:
/s/ Xxxxx
X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
Chief Executive Officer
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