Attached files
file | filename |
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8-K - FORM 8-K - Sooner Holdings, Inc. | c90975e8vk.htm |
EX-5.1 - EXHIBIT 5.1 - Sooner Holdings, Inc. | c90975exv5w1.htm |
EX-5.2 - EXHIBIT 5.2 - Sooner Holdings, Inc. | c90975exv5w2.htm |
EX-10.88 - EXHIBIT 10.88 - Sooner Holdings, Inc. | c90975exv10w88.htm |
EX-10.89 - EXHIBIT 10.89 - Sooner Holdings, Inc. | c90975exv10w89.htm |
Exhibit 10.87
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims (Agreement) is between Syntroleum
Corporation, a Delaware corporation (which, together with its affiliated entities, parent entities,
subsidiary entities, members, shareholders, directors, officers, partners, representatives,
attorneys, accountants, auditors, agents, employees, assigns, and predecessors and
successors-in-interest are collectively referred to herein as Syntroleum) and Fletcher
International, Ltd., a Bermuda corporation (which, together with its affiliated entities
(including, but not limited to, Fletcher Asset Management), parent entities, subsidiary entities,
members, shareholders, directors, officers, partners, representatives, attorneys, accountants,
auditors, agents, employees, assigns, and predecessors and successors-in-interest are collectively
referred to herein as Fletcher).
It is the intent of this Agreement (a) to settle and forever resolve all claims that
Syntroleum and Fletcher have or may have against one another, which claims arise out of or in any
way relate to that certain agreement (and any exhibits thereto) between Syntroleum Corporation and
Fletcher International, Ltd. dated November 18, 2007 and/or the amendments thereto, (collectively,
the November 2007 Agreement); (b) to extinguish the rights, duties, and obligations that either
Syntroleum or Fletcher had, have or may have under the November 2007 Agreement; (c) to dismiss,
with prejudice, all litigation currently pending between Syntroleum and Fletcher; and (d) to enter
into a new agreement relating to Fletchers purchase of stock in Syntroleum and related issues (the
Securities Purchase Agreement, attached hereto as Exhibit A).
For and in consideration of the mutual promises and undertakings set forth herein, the mutual
execution and delivery of this Agreement, the mutual execution and delivery of the
Securities Purchase Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is mutually acknowledged, Syntroleum and Fletcher agree as follows:
1. Syntroleum hereby releases and forever discharges Fletcher of and from all claims, demands,
rights, actions or causes of action, liabilities, damages, losses, obligations, judgments, suits,
matters and issues of any kind or nature whatsoever, whether known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, natural or
unnatural that have been, could have been or in the future can or might be asserted in Civil Action
No. 08-cv-5851, Fletcher International, Ltd. vs. Syntroleum Corporation, in the United States
District Court for the Southern District of New York, or in Case No. 08-VC-00384 JHP-FHM,
Syntroleum Corporation v. Fletcher International, Ltd., in the United States District Court for the
Northern District of Oklahoma, or in any other forum or tribunal, under or in any way relating to
the November 2007 Agreement, or otherwise.
2. Fletcher hereby releases and forever discharges Syntroleum of and from all claims, demands,
rights, actions or causes of action, liabilities, damages, losses, obligations, judgments, suits,
matters and issues of any kind or nature whatsoever, whether known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, natural or
unnatural that have been, could have been or in the future can or might be asserted in Civil Action
No. 08-cv-5851, Fletcher International, Ltd. vs. Syntroleum Corporation, in the United States
District Court for the Southern District of New York, or in Case No. 08-VC-00384 JHP-FHM,
Syntroleum Corporation v. Fletcher International, Ltd., in the United States District Court for the
Northern District of Oklahoma, or in any other forum or tribunal, under or in any way relating to
the November 2007 Agreement, or otherwise.
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3. With respect to any and all claims released in this Agreement, Syntroleum and Fletcher
expressly waive any and all provisions, rights and benefits conferred by any federal, state, local,
statutory, or common law or any other law, rule or regulation, including the law of any
jurisdiction outside of the United States, which is similar, comparable or equivalent to CAL CIV.
CODE § 1542 which provides:
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.
Syntroleum and Fletcher acknowledge and agree that the release of unknown claims in this Agreement
was separately bargained for and was a key element of this settlement, and each of the parties
assumes the risk of their respective subsequent discovery or understanding of any matter, fact or
law that, if now known or understood, would in any respect have affected its entering into this
Agreement.
4. Notwithstanding anything herein to the contrary, any and all disputes arising under the
Securities Purchase Agreement are specifically excluded from the foregoing mutual releases.
5. Within five (5) business days of the closing of the initial investment transaction
described in the attached Securities Purchase Agreement, Syntroleum and Fletcher will promptly file
all papers required to effect the dismissal, with prejudice, of Civil Action No. 08-cv-5851,
Fletcher International, Ltd. vs. Syntroleum Corporation, in the United States District Court for
the Southern District of New York. Such dismissal shall provide that each party will bear its own
attorneys fees and expenses and taxable costs of court will be assessed, if at all, against the
party who incurred same.
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6. Upon execution and delivery of both the Securities Purchase Agreement and this Agreement by
both Fletcher and Syntroleum, the November 2007 Agreement is hereby terminated in all respects and
for all purposes.
7. Syntroleum and Fletcher acknowledge, represent and warrant to each other:
a. That they have been fully informed and have full knowledge of the terms, conditions,
and effects of this Agreement;
b. That they have been represented by independent legal counsel of their choice
throughout all negotiations preceding execution of this Agreement and have received the
advice of such attorneys in entering into this Agreement;
c. That they, either directly or through independently retained attorneys, have fully
investigated to their satisfaction all facts surrounding the various claims, controversies,
and disputes and are fully satisfied with the terms and effects of this Agreement;
d. That no promise or inducement has been offered or made to them, except as expressly
stated in this Agreement and the Securities Purchase Agreement;
e. That this Agreement is executed without reliance on any statement or representation
by any third party or any third partys agent, and that this Agreement and the Securities
Purchase Agreement supersede all prior negotiations and discussions;
f. That they are the sole owners of the claims or causes of action that they have
released in this Agreement and that they have not previously assigned or transferred or
purported to assign or transfer any interest in any such claims or causes of action to any
other person or entity;
g. That they are not in a disparate bargaining position with respect to the negotiation
of this Agreement and are executing this Agreement of their own free will, act, and deed;
and
h. That they have full authority to enter into this Agreement and are competent to do
so, and that this Agreement constitutes a legal, valid, and binding obligation enforceable
against them in accordance with its terms.
In addition to the foregoing, each party acknowledges, warrants, and represents to the other
that the person executing this Agreement on its behalf is duly authorized and empowered to do so
and that all corporate and other formalities necessary for its approval of this Agreement have been
satisfied. Each of the parties recognizes and acknowledges that they have relied on
each of the foregoing acknowledgments, representations, and warranties in entering into this
Agreement and each agrees that these acknowledgments, representations, and warranties shall survive
the execution of this Agreement.
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8. This Agreement shall neither constitute nor be construed as an adjudication or finding on
the merits of any of the allegations raised in any litigation between Syntroleum and Fletcher and
shall not in any manner constitute or be deemed to be an admission of liability or culpability on
the part of Syntroleum or Fletcher, all such liability being expressly denied.
9. The effective date of this Agreement shall be the last date it is executed and delivered by
any of the parties. This Agreement may be executed in one or more identical, separate
counterparts, each of which shall be an original as against the party who signed it, and all of
which shall constitute one and the same instrument. Facsimile and PDF copies of signatures shall
be accepted as original signatures.
10. This Agreement and the Securities Purchase Agreement embody the entire agreement among the
parties hereto and supersede all prior proposals, negotiations, agreements, and understandings
relating to the subject matter hereof, and neither party is relying upon any statement or
representation that is not contained in this Agreement, or in the Securities Purchase Agreement.
11. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns, including purchasers of all or substantially all of the assets
of any corporate party hereto.
12. In the event any litigation is initiated between Fletcher and Syntroleum after the date of
this Agreement with respect to this Agreement, any prevailing party, as determined by a
court of competent jurisdiction, shall be entitled to recover such partys reasonable
attorneys fees and costs from and against any non-prevailing party.
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13. This Agreement shall be governed by, and construed in accordance with the internal laws of
the State of New York, without regard for New Yorks conflict of law principles. Each of the
parties hereto hereby submits to the exclusive jurisdiction of any state or federal court in the
Southern District of New York and any court hearing any appeal therefrom, over any suit, action or
proceeding arising out of or based upon this Agreement. Each of the parties hereto hereby waives
any objection to any proceeding in such court whether on the grounds of venue, residence or
domicile or on the ground that the proceeding has been brought in an inconvenient forum.
14. Each party and counsel for each party to this Agreement have reviewed this Agreement and
have participated in its drafting, and, accordingly, no party shall attempt to invoke any rule of
construction to the effect that ambiguities are to be resolved against the drafting party in any
interpretation of this Agreement.
15. In the event that any provision of this Agreement should be held to be void, voidable, or
unenforceable in any respect, the remaining portions of this Agreement shall remain in full force
and effect, unless the provision held to be void, voidable, or unenforceable is a material term
that forms the basis for this Agreement.
16. Any modification or waiver of any provision of this Agreement, or any consent to any
departure from its terms, shall not be binding unless the same is in writing and signed by all of
the parties hereto.
17. In the event there is any material conflict between this Agreement and the Securities
Purchase Agreement, the specific provisions of this Agreement shall govern.
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SYNTROLEUM CORPORATION on behalf of Syntroleum (as defined above) | ||||||||
By: | /s/ Edward G. Roth | |||||||
Edward G. Roth | ||||||||
Its: | Chief Executive Officer | |||||||
Dated: | 10/14/09 | |||||||
FLETCHER INTERNATIONAL, LTD. on behalf of Fletcher (as defined above) | ||||||||
By: | /s/ Peter Zayfert | |||||||
Peter Zayfert | ||||||||
Its: | Authorized Signatory | |||||||
Dated: | 10/13/09 | |||||||
By: | /s/ Stewart Turner | |||||||
Stewart Turner | ||||||||
Its: | Authorized Signatory | |||||||
Dated: | 10/13/09 | |||||||
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