TERMINATION, RELEASE AND TRANSACTION FEE AGREEMENT
Exhibit 10.1
TERMINATION, RELEASE
AND TRANSACTION FEE AGREEMENT
This Termination, Release and Transaction Fee Agreement (this “Agreement”), dated as
of April 10, 2008, is entered into by and among (i) Newpark Resources, Inc., a Delaware corporation
(“Newpark”), Newpark Drilling Fluids LLC, a Texas limited liability company and a direct
wholly-owned subsidiary of Newpark (“DFI”), Newpark Texas, L.L.C., a Louisiana limited
liability company and an indirect wholly-owned subsidiary of Newpark (“Newpark Texas” and,
together with Newpark and DFI, the “Newpark Parties”), and (ii) Trinity Storage Services,
L.P., a Texas limited partnership (“Trinity”) and Trinity TLM Acquisitions, LLC, a Texas
limited liability company (“TLM”) and Xxxx Bluff Property, L.P., a Texas limited
partnership (“MBP” and, together with Trinity and TLM, the “Trinity Parties”).
Each Newpark Party and each Trinity Party are referred to herein from time to time collectively as
the “Parties” and individually as a “Party”.
R E C I T A L S
WHEREAS, the Newpark Parties and the Trinity Parties (collectively, the “Purchase
Agreement Parties”) have entered into that certain Membership Interests Purchase Agreement (the
“Purchase Agreement”) dated as of October 10, 2007 providing for the purchase and sale of
the Acquired Interests (capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Purchase Agreement);
WHEREAS, the Outside Date has been extended in accordance with the terms of the Purchase
Agreement, and the Newpark Parties have notified the Trinity Parties of their willingness to effect
the Closing contemplated by the Purchase Agreement;
WHEREAS, the Trinity Parties have requested, and the Newpark Parties have agreed, to a
termination of the Purchase Agreement subject to, and in accordance with, the terms and provisions
of this Agreement; and
WHEREAS, the Parties desire to enter into this Agreement to evidence the terms and conditions
of their mutual agreement to terminate the Purchase Agreement.
NOW, THEREFORE, in consideration of the provisions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
hereto agree as follows:
1.
Termination of Purchase Agreement; Release of Obligations under Purchase Agreement.
Subject to the following provisions of this Section 1 and pursuant to Section
9.1(a) of the Purchase Agreement, the Purchase Agreement Parties agree to and do hereby terminate
the Purchase Agreement and the Purchase Agreement Parties’ obligations to effect the Closing of the
transactions contemplated therein; provided, however, that the termination shall not affect the
obligations of the Purchase Agreement Parties under the provisions of Section 5.1(a) (as they
relate to the Confidentiality Agreement), Section 11.2 and Section 11.4 of the Purchase Agreement
(the “Surviving Provisions”), which shall survive the termination of the Purchase Agreement. For the avoidance of doubt, the provisions of Section 9.3 of the Purchase
Agreement shall not survive the termination of the Purchase Agreement hereunder except for the
obligation of TLM to pay Newpark the Termination Fee in the event of any material breach by the
Trinity Parties of the provisions of Section 4 below, and in the event of any such material
breach by the Trinity Parties, the foregoing statement in this Section 1 that the Purchase
Agreement was terminated pursuant to Section 9.1(a) thereof shall not adversely affect Newpark’s
right to receive the Termination Fee. By executing this Agreement, each Purchase Agreement Party
acknowledges and agrees that, except for the Surviving Provisions and the Trinity Parties’
obligation to pay Newpark the Termination Fee upon a material breach by the Trinity Parties of the
provisions of Section 4 below, its respective rights, obligations and liabilities under the
Purchase Agreement are hereby terminated and extinguished and that the Purchase Agreement is null
and void and of no further force or effect. Notwithstanding anything to the contrary contained
herein, the Purchase Agreement Parties agree that the Confidentiality Agreement shall remain in
full force and effect in accordance with its terms.
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2.
Release by the Newpark Parties.
(a) Except with respect to the Newpark Excluded Claims (defined below) and subject to the
provisions of Section 2(f) below, each Newpark Party, on behalf of itself and all its
officers, directors, employees, equityholders, subsidiaries, parent entities, affiliates,
successors and assigns (together with each Newpark Party, each a “Newpark Releasing Party”
and collectively the “Newpark Releasing Parties”), as applicable, hereby waives, discharges
and releases (the “Newpark Release”) the Trinity Parties, and their respective affiliates,
subsidiaries, parent entities, employees, consultants, agents, heirs, executors, successors,
assigns, officers, directors, advisors and equityholders (together with the Trinity Parties, each a
“Trinity Released Party” and collectively the “Trinity Released Parties”), from any
and all claims, actions, causes of actions, demands, damages, liens, agreements, contracts,
covenants, actions, suits, obligations, controversies, debts, costs, fees, dues, expenses,
judgments, orders and all other claims and liabilities of every nature and description, known or
unknown, matured or unmatured, at law or equity, and whether or not contingent (collectively,
“Claims”) that any Newpark Releasing Party ever had, now has or may have against any of the
Trinity Released Parties in connection with, arising from, or that may arise from the Purchase
Agreement (collectively, the “Newpark Released Claims”). Notwithstanding the foregoing,
the Newpark Released Claims do not include, and there shall be no release hereby with respect to,
(i) the obligations of the Trinity Parties under the Surviving Provisions, (ii) any liability of
the Trinity Parties for any violation or breach of the Confidentiality Agreement, or (iii) any
liability of the Trinity Parties for any material breach of or failure to perform any of the
covenants or obligations of the Trinity Parties under Section 4 below (collectively, the
“Newpark Excluded Claims”).
(b) Subject to the provisions of Section 2(f) below, it is the intention of the
Newpark Parties in executing this Agreement (and granting the Newpark Release contained herein)
that this Agreement (and the Newpark Release contained herein) shall be effective as a bar to the
Newpark Released Claims, and the Newpark Parties hereby knowingly and voluntarily waive any and all
Newpark Released Claims. The Newpark Parties expressly consent that this Agreement (and the
Newpark Release contained herein) shall be given full force and effect according to each and all of its express terms and provisions, including as to any Newpark
Released Claims that are, as of the date of this Agreement, unknown, unsuspected and unanticipated
(notwithstanding any federal, state, local or foreign law (statutory or decisional) that may
expressly or impliedly limit the effectiveness of this Agreement (and the Newpark Release contained
herein) to bar any such unknown, unsuspected and unanticipated Newpark Released Claims).
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(c) Each Newpark Party acknowledges that it has executed this Agreement (and the Newpark
Release contained herein) freely and without coercion, that it has been advised by counsel and that
it has been provided with a reasonable period of time to consider the terms of this Agreement (and
the Newpark Release contained herein).
(d) The Newpark Parties further acknowledge and understand that the actual facts and
circumstances to which this Agreement (and the Newpark Release contained herein) relates may
hereafter turn out to be other than or different from the facts now believed to be known by the
Parties and circumstances now perceived by the Parties. The Newpark Parties assume such risk and
agree that this Agreement (and the Newpark Release contained herein) shall be in all respects
effective and shall not be subject to termination or rescission by reason of such different facts
or circumstances.
(e) This Agreement (and the Newpark Release contained herein) is not intended, and shall not
be construed, as an admission that any of the Trinity Released Parties has violated any federal,
state, local or foreign law (statutory or decisional), ordinance or regulation, has breached any
contract or has committed any wrong whatsoever against any Newpark Releasing Party.
(f) The Trinity Parties acknowledge that the covenants and obligations of the Trinity Parties
set forth in Section 4 below constitute a material inducement and consideration for the
Newpark Parties’ execution of this Agreement and the Newpark Release contained herein. The Newpark
Release is conditioned upon the Trinity Parties’ performance in all material respects of their
respective obligations contained in this Agreement including, without limitation, the covenants and
obligations set forth in Section 4 below. If the Trinity Parties fail to comply in all
material respects with the terms and obligations of this Agreement including, without limitation,
the covenants contained in Section 4 below, the Newpark Release shall no longer be
effective and the Newpark Parties shall be entitled to pursue any and all rights they may have
hereunder and under the Purchase Agreement including the recovery of the Termination Fee.
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3.
Release by the Trinity Parties.
(a) Except with respect to the Trinity Excluded Claims (defined below) and subject to the
provisions of Section 3(f) below, each Trinity Party, on behalf of itself and all its
officers, directors, employees, equityholders, subsidiaries, parent entities, affiliates, heirs,
successors and assigns (together with each Trinity Party, each a “Trinity Releasing Party”
and collectively the “Trinity Releasing Parties”), as applicable, hereby waives, discharges
and releases (the “Trinity Release”), the Newpark Parties and their respective affiliates,
subsidiaries, parent entities, employees, consultants, agents, heirs, executors, successors,
assigns, officers, directors, advisors and equityholders (together with the Newpark Parties, each a
“Newpark Released Party” and collectively the “Newpark Released Parties”) from any
and all Claims that any Trinity Releasing Party ever had, now has or may have against any of the
Newpark Released Parties in connection with, arising from or that may arise from the Purchase
Agreement, including, without limitation, any Claim arising from or that may arise from any
discussions, conversations, communications or negotiations between the Newpark Parties and
representatives of either or both of Kinderhook Industries, LLC and its affiliates (collectively,
“KH”) and CCS Corporation and its affiliates (collectively, “CCS”) (collectively,
the “Trinity Released Claims”). Notwithstanding the foregoing the Trinity Released Claims
do not include, and there shall be no release hereby with respect to, (i) the obligations of the
Newpark Parties under the Surviving Provisions, (ii) any liability of the Newpark Parties for any
violation or breach of the Confidentiality Agreement, or (iii) any liability of the Newpark Parties
for any material breach of or failure to perform any of the covenants or obligations of the Newpark
Parties under Section 5 below (the “Trinity Excluded Claims”).
(b) Subject to the provisions of Section 3(f) below, it is the intention of the
Trinity Parties in executing this Agreement (and granting the Trinity Release contained herein)
that this Agreement (and the Trinity Release contained herein) shall be effective as a bar to the
Trinity Released Claims, and the Trinity Parties hereby knowingly and voluntarily waive any and all
Trinity Released Claims. The Trinity Parties expressly consent that this Agreement (and the
Trinity Release contained herein) shall be given full force and effect according to each and all of
its express terms and provisions, including as to any Trinity Released Claims that are, as of the
date of this Agreement, unknown, unsuspected and unanticipated (notwithstanding any federal, state,
local or foreign law (statutory or decisional) that may expressly or impliedly limit the
effectiveness of this Agreement (and the Trinity Release contained herein) to bar any such unknown,
unsuspected and unanticipated Trinity Released Claims).
(c) Each Trinity Party acknowledges that it has executed this Agreement (and the Trinity
Release contained herein) freely and without coercion, that it has been advised by counsel and that
it has been provided with a reasonable period of time to consider the terms of this Agreement (and
the Trinity Release contained herein).
(d) The Trinity Parties further acknowledge and understand that the actual facts and
circumstances to which this Agreement (and the Trinity Release contained herein) relates may
hereafter turn out to be other than or different from the facts now believed to be known by the
Parties and circumstances now perceived by the Parties. The Trinity Parties assume such risk and
agree that this Agreement (and the Trinity Release contained herein) shall be in all respects
effective and shall not be subject to termination or rescission by reason of such different facts
or circumstances.
(e) This Agreement (and the Trinity Release contained herein) is not intended, and shall not
be construed, as an admission that any Newpark Released Party has violated any federal, state,
local or foreign law (statutory or decisional), ordinance or regulation, has breached any contract
or has committed any wrong whatsoever against any Trinity Releasing Party.
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(f) The Newpark Parties acknowledge that the covenants and obligations of the Newpark Parties
set forth in Section 5 below constitute a material inducement and consideration of the
Trinity Parties’ execution of this Agreement and the Trinity Release contained herein. The Trinity
Release is conditioned upon the Newpark Parties’ performance in all material respects of their
respective obligations contained in this Agreement including, without limitation, the covenants and
obligations set forth in Section 5 below. If the Newpark Parties fail to comply in all
material respects with the terms and obligations of this Agreement including, without limitation,
the covenants contained in Section 5 below, the Trinity Release shall no longer be
effective and the Trinity Parties shall be entitled to pursue any and all rights they may have
hereunder and under the Purchase Agreement.
4.
Covenants of Trinity Parties.
(a) The Trinity Parties hereby expressly agree that each of KH and CCS shall no longer be
bound by or subject to any noncircumvention or other exclusivity arrangement with the Trinity
Parties with respect to an Acquisition Transaction and that each of KH and CCS shall have the
right, independently of the Trinity Parties, (i) to negotiate with the Newpark Parties concerning
an Acquisition Transaction, (ii) to consummate an Acquisition Transaction, (iii) to negotiate with
potential lenders and other financing sources that were introduced to KH or CCS, as the case may
be, by the Trinity Parties with respect to the financing of an Acquisition Transaction, and (iv) to
secure financing as needed from such lenders or other financing sources.
(b) The Trinity Parties shall, and shall cause each of their respective employees,
consultants, agents, officers, directors and advisors to (i) afford to each of KH and CCS, and
their respective representatives, reasonable access to the Trinity Parties’ due diligence materials
relating to the proposed acquisition by TLM of the Acquired Interests including, without
limitation, all Environmental Reports obtained by the Trinity Parties and reasonable access during
normal business hours to the Trinity Parties’ personnel and representatives to make reasonable
inquiry of such personnel and representatives regarding such materials; (ii) furnish each of KH and
CCS with such financial, operating and other data concerning the Transferred Entities that the
Trinity Parties may have obtained or prepared in connection with their due diligence review of the
Transferred Entities; and (iii) otherwise reasonably cooperate with each of KH and CCS in their
investigation of the Transferred Entities. The Trinity Parties shall authorize Terracon
Consultants, Inc. (“Terracon”) to make available to each of KH and CCS all Environmental
Reports previously prepared by Terracon under the direction of the Trinity Parties, and the Trinity
Parties shall take such further actions as may be necessary and within Trinity’s control so that
each entity may rely upon such Environmental Reports. Any fee payable to Terracon with respect
thereto shall be paid by the Trinity Parties, KH and CCS as they shall mutually agree. The
foregoing shall not require the Trinity Parties to permit any inspection, or disclose any
information, that is reasonably likely to result in the disclosure of any confidential or
proprietary information relating to the operations of the Trinity Parties or of any information
subject to attorney-client privilege. In the event that the Trinity Parties receive written notice
from Newpark that Newpark has entered into an exclusive agreement with any third party with respect
to an Acquisition Transaction, then the Trinity Parties shall have no further obligations under
this Section 4 with respect to either or both of CCS and KH unless CCS or KH, as the case may be, is a party to the exclusive agreement with Newpark. Further, the
Trinity Parties shall have no further obligations under this Section 4 if the Trinity
Parties receive written notice from Newpark that Newpark has terminated negotiations with each of
CCS and KH with respect to a potential Acquisition Transaction.
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5.
Covenants of the Newpark Parties.
(a) Subject to the conditions set forth in Section 5(b) below, if the Newpark Parties
consummate and close an Acquisition Transaction with either KH or CCS, and/or any of their
respective affiliates, subsidiaries, parent entities or equityholders, on or before December 31,
2008, Trinity or its designee shall be entitled to receive a transaction fee from Newpark as
follows:
| (i) | if the Acquisition Transaction is completed with KH, and/or any
of its affiliates, subsidiaries, parent entities or equityholders (together
with KH, each a “KH Party” and collectively the “KH Parties”),
Trinity or its designee shall be entitled to receive the sum of $5,000,000 (the
“KH Transaction Fee”); and |
||
| (ii) | if the Acquisition Transaction is completed with CCS, and/or
any of its affiliates, subsidiaries, parent entities or equityholders (together
with CCS, each a “CCS Party” and collectively the “CCS
Parties”), Trinity or its designee shall be entitled to receive the sum of
$2,500,000 (the “CCS Transaction Fee”) (the KH Transaction Fee and CCS
Transaction Fee may each be referred to as the “Transaction Fee”). |
If earned, the Newpark Parties shall pay or cause to be paid to Trinity or its designee the
applicable Transaction Fee by wire transfer of immediately available funds to an account specified
by Trinity or its designee.
(b) Trinity’s right to receive the applicable Transaction Fee, and the Newpark Parties’
obligation to pay (or cause to be paid) the applicable Transaction Fee, is subject to the following
conditions:
| (i) | the Trinity Parties shall have complied in all material
respects with the provisions of Section 4 above; and |
||
| (ii) | the closing of the Acquisition Transaction must be with a KH
Party or CCS Party and must occur on or before December 31, 2008. |
(c) The CCS Transaction Fee shall only be payable to Trinity or its designee if CCS and the
Trinity Parties shall not have completed a transaction, simultaneously with or prior to the
completion by any CCS Party of an Acquisition Transaction, pursuant to which any CCS Party shall
have acquired all or substantially all of the business operations and assets of the Trinity Parties
(whether by merger, consolidation, business combination, asset or equity purchase, or other
transaction) (the “CCS/Trinity Transaction”).
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(d) Assuming the conditions set forth in subsection (b) have been satisfied, the KH
Transaction Fee, if applicable, shall be payable promptly (within two Business Days) following the
closing of the Acquisition Transaction.
(e) Assuming the conditions set forth in subsections (b) and (c) have been satisfied, the CCS
Transaction Fee, if applicable, shall be payable promptly (within two Business Days) following the
closing of the Acquisition Transaction. If Trinity or its designee receives a CCS Transaction Fee,
and thereafter the Trinity Parties and the CCS Parties consummate a CCS/Trinity Transaction on or
before December 31, 2008, the Trinity Parties will pay or cause to be paid to Newpark or its
designee an amount that is equal to the CCS Transaction Fee actually received by Trinity or its
designee hereunder. Trinity agrees to use commercially reasonable efforts to include in any
definitive agreement for the CCS/Trinity Transaction an undertaking by CCS to pay directly to
Newpark from the consideration payable in the CCS/Trinity Transaction an amount equal to the CCS
Transaction Fee if the CCS/Trinity Transaction is consummated on or before December 31, 2008. Any
such payment by CCS shall be in full satisfaction of Trinity’s obligations in this Section
5(e).
(f) Notwithstanding the termination of the Purchase Agreement, the Trinity Parties may
continue to seek financing to complete any Acquisition Transaction independent of CCS and/or KH,
and the Newpark Parties will continue to negotiate with the Trinity Parties with respect to any
Acquisition Transaction unless and until the Newpark Parties enter into an exclusivity agreement
with a third party pertaining to one or more potential Acquisition Transactions or otherwise notify
the Trinity Parties that they are terminating negotiations with the Trinity Parties concerning the
Acquisition Transactions.
6.
Further Assurances by the Parties.
Each Party hereto agrees to take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary, proper or advisable to give immediate effect to the agreements
contained herein.
7.
Miscellaneous.
(a) Complete Agreement; Assignment. This Agreement (i) embodies the complete
agreement and understanding among the Parties and, except as otherwise provided herein, supersedes
and preempts any prior understandings, agreements or representations (including, without
limitation, the Purchase Agreement) by or among the Parties, written or oral, that may have related
to the subject matter hereof in any way and (ii) shall not be assigned by any Party (whether by
operation of law or otherwise) without the prior written consent of the other Parties and any
attempted assignment without such consent shall be null and void.
(b) Amendment; Waiver. No part of this Agreement may be changed except in writing
executed by each of the Parties. No breach of any provision of this Agreement may be waived unless
such waiver is in writing and signed by the Party or the Parties hereto waiving such breach. The
waiver of a breach of any provision of this Agreement shall not be deemed to be a waiver of any
other breach hereof.
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(c) Counterparts. This Agreement may be executed in separate counterparts and may be
delivered by facsimile or by electronic mail in “portable document format,” each of which
(including any facsimile or portable document format copy that has been delivered) is deemed to be
an original and all of which taken together constitute one and the same agreement.
(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall
bind and inure to the benefit of and be enforceable by the Parties and their respective successors
and permitted assigns. Each Trinity Released Party and Newpark Released Party that has not
executed this Agreement is a third-party beneficiary of this Agreement. With respect to the
covenants and obligations of the Trinity Parties set forth in Section 4 hereof, each of KH
and CCS is a third-party beneficiary of the provisions set forth therein.
(e) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas, without giving any effect to any choice of law or conflict of
law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause
the application of the law of any jurisdiction other than the State of Texas.
(f) Headings. The headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this Agreement.
(g) Interpretation. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provisions will
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of, or further limiting the scope of, this Agreement.
(h) Specific Performance. Any person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this Agreement, and to
exercise all other rights granted by law. All such rights and remedies shall be cumulative and non
exclusive, and may be exercised singularly or concurrently.
*********************
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IN WITNESS WHEREOF, the parties hereto have executed this Termination, Release and Transaction
Fee Agreement as of the date first written above.
| TRINITY TLM ACQUISITIONS, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | President | |||||
| TRINITY STORAGE SERVICES, L.P. | ||||||
| By: CCBS, Inc. Its: General Partner |
||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | President | |||||
| XXXX BLUFF PROPERTY, L.P. | ||||||
| By: MBP GP, L.L.C. Its: General Partner |
||||||
| By: | /s/ Xxx Xxxxx | |||||
| Name: | Xxx Xxxxx | |||||
| Title: | President | |||||
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| NEWPARK RESOURCES, INC. | ||||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Name: | Xxxx X. Xxxxx | |||||
| Title: | President and Chief Executive Officer | |||||
| NEWPARK DRILLING FLUIDS LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | Xxxx X. Xxxxxx | |||||
| Title: | Vice President | |||||
| NEWPARK TEXAS, L.L.C. | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | Xxxx X. Xxxxxx | |||||
| Title: | Vice President | |||||
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