AMENDED AND RESTATED
TERMINATION AGREEMENT
THIS AMENDED AND RESTATED TERMINATION AGREEMENT is effective as of the
3rd day of April, 2001, and is by and among XXXXX OIL AND GAS COMPANY, a Nevada
corporation ("Xxxxx"), its to-be-formed wholly-owned Delaware subsidiary CPI
ACQUISITION CORP. ("Acquisition Corp."), CARPATSKY PETROLEUM INC., a corporation
organized under the laws of the Province of Alberta, Canada ("Carpatsky") and
BELLWETHER EXPLORATION COMPANY, a Delaware corporation ("Bellwether"), and is
made with reference to the following agreed facts:
1. Xxxxx, Acquisition Corp. and Carpatsky entered into an Agreement and Plan
of Merger, dated August 31, 1999 ("Merger Agreement");
2. Xxxxx, Acquisition Corp. and Carpatsky entered into the First Amendment to
Merger Agreement, dated January 3, 2000 ("First Amendment");
3. Xxxxx, Acquisition Corp. and Carpatsky negotiated but did not finalize an
Amended and Restated Agreement and Plan of Merger, to be dated as of August
11, 2000 ("Amended Merger Agreement");
4. Xxxxx, Acquisition Corp., Carpatsky and Bellwether then agreed to terminate
the Merger Agreement and the First Amendment and to abandon and not
finalize the Amended Merger Agreement, to terminate and release the
obligations of the parties under the Merger Agreement, the First Amendment
and the Amended Merger Agreement (all of which are collectively referred to
as the "Merger Agreements"), including any obligations or liabilities of
any party hereto which may have been deemed to have arisen under the Merger
Agreements, in accordance with the terms and agreements of that certain
document entitled Termination Agreement dated the 7th day of November,
2000, between Xxxxx, Acquisition Corp., Carpatsky and Bellwether ("Original
Termination Agreement");
5. Pursuant to the Original Termination Agreement, Carpatsky paid $80,000 to
Xxxxx in full satisfaction of the obligations of Carpatsky to Xxxxx for
bookkeeping and accounting services provided by Xxxxx for Carpatsky through
November 7, 2000. By payment of such amount, that certain Agreement, dated
October 1, 1999 terminated and Carpatsky and Xxxxx have each released the
other from and against any and all obligations thereunder; and
6. Because certain of the agreements set forth in the Original Termination
Agreement could not be timely performed, Xxxxx, Acquisition Corp.,
Carpatsky and Bellwether hereby agree to amend and restate the Termination
Agreement in accordance with the terms and agreements set forth
hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
confirmed, the parties hereto agree as follows:
1. Termination of Agreements. The Merger Agreement, the First Amendment and
the Amended Merger Agreement shall each be terminated, and such
terminations shall be deemed to be terminations by mutual consent of the
parties. Subject to the signature and completion of this agreement, no
party shall have any right against any of the other parties to the Merger
Agreements or Bellwether as a result of the termination of the Merger
Agreements, including any obligations or liabilities of any party which may
be deemed to have arisen under the Merger Agreements. Each party shall bear
its own costs incurred through the date hereof.
2. Release. Xxxxx and Acquisition Corp., on the one hand, and Carpatsky and
Bellwether, on the other hand, hereby release, acquit and forever discharge
each other, including their officers, directors, employees, agents,
successors, predecessors, assigns, parents, subsidiaries, affiliates,
servants, shareholders, partners, attorneys, insurers, past or present, and
all persons or entities, natural or corporate, in privity with them or any
of them, from any and all obligations, liabilities, claims or causes of
action of any kind whatsoever, at common law, statutory or otherwise, known
or unknown, past or present, that Xxxxx and Acquisition Corp., on the one
hand, and Carpatsky and Bellwether, on the other hand, have or might have
against each other arising from or relating to the Merger Agreements,
including but not limited to, claims for misrepresentation, whether
negligent or intentional, failure to disclose any material fact, and breach
of any representation, warranty, or covenant. Xxxxx, Acquisition Corp.,
Carpatsky and Bellwether hereby acknowledge and agree that (a) Bellwether
is a party to and included in this release, notwithstanding the fact that
Bellwether is not a party of any of the Merger Agreements, and (b)
Carpatsky and Bellwether are releasing Xxxxx and Acquisition Corp., as
provided above, but are not releasing each other.
3. Promissory Note from Carpatsky to Xxxxx. Upon acceptance and signature of
this agreement by the parties, and as additional consideration to Xxxxx for
the matters described in this agreement, effective on the date that this
agreement is signed by the parties, Carpatsky shall pay and deliver to
Xxxxx the following:
On or before April 3, 2001 Carpatsky shall deliver to Xxxxx a convertible
promissory note in the form attached hereto as Schedule I, made by
Carpatsky in the amount of $180,000 payable to Xxxxx as set forth therein.
The principal balance thereof remaining unpaid shall not bear interest.
4. Payments by Bellwether to Xxxxx. Upon acceptance and signature of this
agreement by the parties, and as additional consideration to Xxxxx for the
matters described in this agreement, effective on the date that this
agreement is signed by the parties, Bellwether shall deliver to Xxxxx the
following:
Bellwether shall pay $70,000 in cash to Xxxxx in full satisfaction of the
obligations of Bellwether to Xxxxx. Such payment shall be made to Xxxxx on
or before April 3, 2001 by wire transfer of immediately available funds
pursuant to written instructions provided to Bellwether by Xxxxx upon
execution hereof. Upon receipt of such amount, Bellwether and Xxxxx shall
be deemed to have each released the other from and against any and all
obligations of whatsoever nature under the Merger Agreements.
5. Authority. This agreement has been duly authorized and approved by each of
Xxxxx, Carpatsky and Bellwether. Xxxxx confirms that Acquisition Corp. has
never been formed as a corporation.
6. Acknowledgement. Xxxxx, Acquisition Corp., Carpatsky and Bellwether
acknowledge that this agreement has been carefully read, understood and
considered prior to execution. Each party hereto acknowledges that it has
had opportunity to discuss this agreement with counsel of its own choosing
prior to execution. Each party further acknowledges that this agreement
constitutes the full and complete agreement between the parties, and that
in executing this agreement, no party is relying on any representation,
statement or warranty not specifically set forth herein. Xxxxx, Acquisition
Corp., Carpatsky and Bellwether further agree that the terms of this
agreement bind the parties hereto, their successors and assigns.
This agreement sets forth the entire agreement and understanding of the
parties in respect of the transactions contemplated hereby and supersedes all
prior agreements, prior arrangements and prior understandings relating to the
subject matter hereof.
