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 Casey
Co., a California corporation (“
Casey ”)
and NTR Acquisition Co., a Delaware corporation
(“
NTR ,”
and together with Casey, the “
parties ,”
and each, a “
party ”).
WHEREAS,
Casey and NTR on November 2, 2007, entered into a Stock
Purchase Agreement (the “
Stock Purchase Agreement ”)
for the sale by Casey to NTR of all of the issued and outstanding
shares of capital stock of Kern Oil & Refining Co., a
California corporation (“
Kern ”),
Casey’s wholly owned subsidiary; and
WHEREAS,
Casey 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.
“
Casey 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 Casey, 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 Casey 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.
“
Trust Waivers ”
means the letters addressed to NTR by each of Casey and Kern 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 Casey shall execute and
deliver to the Escrow Agent written instructions for the immediate
release to Casey 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 .
Casey 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 Casey or any of the Casey 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. Casey further agrees that
it will not file or permit to be filed on its behalf any such
Claim, including by any of the Casey 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 Casey Released Parties .
NTR hereby fully and finally releases and discharges each of the
Casey 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 Casey Released Parties, for, upon, or by reason of any matter,
cause or thing whatsoever, from the beginning of t
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