EXHIBIT 10.10
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT (the "Agreement") is made and
entered into this 10th day of November, 1999, by and between Tuboscope Inc., a
Delaware corporation ("Tuboscope"), and Newpark Resources, Inc., a Delaware
corporation ("Newpark," and collectively with Tuboscope, the "Parties").
WITNESSETH:
WHEREAS, the Parties entered into that certain Agreement and Plan of
Merger, dated as of June 24, 1999 (the "Merger Agreement," and capitalized terms
not otherwise defined herein shall have the meaning ascribed to them in the
Merger Agreement);
WHEREAS, in connection with the negotiations surrounding the Merger
Agreement, the Parties entered into a Confidentiality Agreement dated June 4,
1999; and
WHEREAS, the Parties hereto wish to terminate the Merger Agreement, and
release their respective rights, claims, obligations and liabilities in
connection therewith, and the board of directors of each Party has approved such
termination and authorized such Party to enter into this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein set
forth, the Parties agree as follows:
1. TERMINATION OF MERGER AGREEMENT. Effective immediately, each of
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Tuboscope and Newpark abandon the Merger and mutually terminate the Merger
Agreement pursuant to Section 8.01(a) thereof (including any provisions which
would survive termination pursuant to the terms of the Merger Agreement).
Notwithstanding anything to the contrary contained in the Merger Agreement,
except as provided herein, no Released Party (as defined herein) shall have any
liability or obligation under the Merger Agreement, including without
limitation, as a result of any action or failure to act in connection with the
Merger Agreement.
2. NON-DISPARAGEMENT; SURVIVAL OF CONFIDENTIALITY AGREEMENT.
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(a) Each Party agrees that it will not, and will cause its respective
subsidiaries, directors, officers and employees not to, and will use its best
efforts to cause its financial advisors, consultants and affiliated entities not
to, make any public statements or any statements reasonably calculated to become
public (orally, in writing, electronically or otherwise), or instigate, assist
or participate in making any such statement, which would or may reasonably be
considered to disparage the other Party or its business or operations, any of
the other Party's corporate predecessors, subsidiaries or affiliates or their
respective businesses or operations, or any of the other Party's present and
former officers, partners, directors, employees, agents, stockholders or
representatives, in their capacity as such. From and after the date hereof,
except as otherwise agreed by the
Parties, no Party shall make any public statements or any statements reasonably
calculated to become public regarding, and in response to inquiries from the
media, analysts, investors and other third parties each Party agrees not to
comment on, (i) the business or prospects of the other Party or (ii) the reasons
for the abandonment of the Merger and mutual termination of the Merger
Agreement, except as provided in the form of joint press release attached hereto
as Exhibit A or as otherwise required by law upon the advice of counsel, which
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shall be confirmed in writing. For purposes of this Agreement, a statement made
by, or authorized by or made under the direction of, an officer or director of a
Party, or a representative of such Party's media relations or investor relations
departments, to the media, analysts, investment community or a significant
shareholder of a Party will be conclusively presumed to be "reasonably
calculated to become public" and any other statement which actually becomes
public will be subject to a rebuttable presumption that it was "reasonably
calculated to become public" at the time it was made.
(b) The Confidentiality Agreement shall remain in full force and effect in
accordance with its terms.
3. EXPENSES. No Party shall pay a termination fee to, or expense of, the
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other Party under the Merger Agreement or in connection with the proposed
Merger, including without limitation any termination fee or expense provided for
in Sections 8.03(b)-(g) of the Merger Agreement. Each Party shall bear its own
costs and expenses heretofore or hereafter incurred by each Party in connection
with or relating to this Agreement, the Merger Agreement and the transactions
contemplated hereby and thereby, including the proposed Merger.
4. GENERAL RELEASE AND WAIVER. Effective immediately, each of the Parties
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and each of their respective predecessors, successors, subsidiaries and assigns
and any of the present and former officers, directors and employees of the
foregoing (each, a "Releasing Party"), in their capacity as such, hereby
covenants not to sue and forever releases and discharges the other Party (and
each of their respective directors, officers, representatives, advisors
(including but not limited to financial advisors), attorneys, accountants,
employees, agents, parents, subsidiaries, affiliated persons and entities,
predecessors, successors and assigns and heirs, executors and administrators and
all persons acting in concert with any such party) (each, a "Released Party")
from all manner of claims, actions, causes of action or suits, at law or in
equity, known or unknown, which each now has or hereafter can, shall or may have
by reason of any matter, cause or thing whatsoever relating to or arising out of
the Merger Agreement or the agreements or instruments ancillary thereto or the
transactions contemplated thereby, or any action or failure to act under the
Merger Agreement or in connection therewith, or in connection with the events
leading to the abandonment of the Merger and the mutual termination of the
Merger Agreement, excepting only any claim, action, cause of action or suit
arising (i) out of an undertaking or promise contained in this Agreement or any
agreement entered into between the parties subsequent to the date of this
Agreement, or (ii) by virtue of obligations under the Confidentiality Agreement,
or (iii) by virtue of
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transactions or dealings undertaken in the ordinary course of business and not
arising out of, or in connection with, the Merger Agreement and the transactions
contemplated thereby. Nothing in this Agreement or the Merger Agreement shall
in any way constitute an agreement by any party hereto to indemnify any other
party hereto against any third party claim.
5. GOVERNING LAW. This Agreement, and all matters relating hereto, shall
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be governed by, and construed in accordance with the laws of the State of
Delaware without reference to the conflict of laws principles thereof.
6. ENTIRE AGREEMENT. This Agreement and the Confidentiality Agreement
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constitute the entire agreement between the parties and supersede all prior
agreements and understandings, both written and oral, between the Parties, or
any of them, with respect to the subject matter hereof.
7. COOPERATION. Each Party agrees to cooperate with the other and to
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take all action reasonably necessary to give full effect to the provisions and
intent of this Agreement, including, without limitation, any action necessary to
defend the validity and enforceability hereof. For such purpose, each Party will
bear its own costs and expenses incurred to take such action.
8. AMENDMENT AND MODIFICATION. This Agreement may be amended, modified,
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and supplemented only by a written document executed by the Parties which
specifically states that it is an amendment, modification or supplement to this
Agreement.
9. AUTHORIZATION. Each Party represents and warrants (i) this Agreement
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has been duly and validly authorized, executed and delivered, and (ii) the
person executing this Agreement on its behalf is duly authorized and fully
competent to execute this Agreement on its behalf. In entering into this
Agreement, the undersigned represent that they have read all the terms hereof,
have discussed the terms with counsel and that such terms are fully understood
and voluntarily accepted.
10. CONSTRUCTION. This Agreement shall be construed without regard to
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the Party or Parties responsible for its preparation, and it shall be deemed to
have been prepared jointly by the Parties. Any ambiguity or uncertainty arising
herein shall not be interpreted or construed against any Party hereto.
11. NOTICES. Notices, requests, instructions or other documents to be
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given under this Agreement shall be in writing and shall be deemed given, (a)
when sent if sent by facsimile, provided that the facsimile is promptly
confirmed by telephone confirmation thereof to the intended recipient, (b) when
delivered, if delivered personally to the intended recipient, and (c) one
business day later, if sent by overnight delivery via a national courier
service, and in each case, addressed to a Party at the following address for
such Party:
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if to Tuboscope:
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Tuboscope Inc.
2835 Holmes Road
Houston, Texas 77051
Attention: James F. Maroney, Esq.
Telecopy: (713) 799-5224
with a copy to:
Latham & Watkins
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626
Attention: Patrick T. Seaver, Esq.
Telecopy: (714) 755-8290
if to Newpark:
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Newpark Resources, Inc.
3850 North Causeway, Suite 1770
Metairie, Lousiana 70002
Attention: James D. Cole
Telecopy: (504) 833-9506
with a copy to:
Ervin, Cohen & Jessup LLP
9401 Wilshire Blvd., 9th Floor
Beverly Hills, CA 90212-2974
Attention: Bertram K. Massing, Esq.
Telecopy: (310) 859-2325
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
12. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
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13. SEVERABILITY. Any term or provision of this Agreement that is
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invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affect the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction, and if any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
14. ENFORCEMENT. The parties agree that in the event of a breach of any
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provision of this Agreement irreparable damage would occur, the aggrieved party
would be without an adequate remedy at law, and damages would be difficult to
determine. The parties therefore agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may elect to institute and
prosecute proceedings to enforce specific performance or to enjoin the
continuing breach of such provision. By seeking or obtaining such relief, the
aggrieved party will not be precluded from seeking or obtaining any other relief
to which it may be entitled at law or in equity. In the event of any dispute,
litigation or other adversary proceeding that may arise with respect to the
subject matter of this Agreement (including the Confidentiality Agreement), the
prevailing party will be entitled to receive from the other party reasonable
attorneys' fees, costs and expenses incurred in such dispute, litigation or
proceeding. The "prevailing party" means the party determined by the court or
arbitrator to have most nearly prevailed, even if such party did not prevail in
all matters, and not necessarily the party in whose favor a judgment is
rendered.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, inure
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to the benefit of and be enforceable by the parties and their respective
successors and assigns.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first written
above.
TUBOSCOPE INC.
By: /s/ Joseph C. Winkler
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Name: Joseph C. Winkler
Title: Executive Vice President and
Chief Financial Officer
NEWPARK RESOURCES, INC.
By: /s/ James D. Cole
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Name: James D. Cole
Title: President