EXHIBIT 10.2
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TRANSITION SERVICES AGREEMENT
by and between
XXXXXXXX CORPORATION
and
ENPRO INDUSTRIES, INC.
dated as of
May 31, 2002
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TABLE OF CONTENTS
Page
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ARTICLE 1 TERM....................................................................................... 1
Section 1.01 Term of the Agreement............................................................. 1
ARTICLE 2 SERVICES................................................................................... 2
Section 2.01 Services Provided by Xxxxxxxx..................................................... 2
Section 2.02 Payment for Services Provided by Xxxxxxxx......................................... 2
ARTICLE 3 CONTRACTS.................................................................................. 2
Section 3.01 Use of Certain Contracts.......................................................... 2
Section 3.02 Payment for Goods and Services Purchased by the EnPro
Group Under the Subject Contracts................................................. 2
Section 3.03 Liability and Indemnification..................................................... 2
ARTICLE 4 TERMINATION................................................................................ 3
Section 4.01 Automatic Termination............................................................. 3
Section 4.02 Termination With Notice........................................................... 3
Section 4.03 Mutual Cooperation and Additional Assumptions..................................... 3
ARTICLE 5 GENERAL.................................................................................... 3
Section 5.01 Amendments; Non-Waiver............................................................ 3
Section 5.02 Notices........................................................................... 3
Section 5.03 Governing Law..................................................................... 4
Section 5.04 Level of Service.................................................................. 4
Section 5.05 Transitional Nature of Services; Changes.......................................... 4
Section 5.06 Mutual Cooperation................................................................ 4
Section 5.07 Independent Contractors........................................................... 5
Section 5.08 Severability...................................................................... 5
Section 5.09 Entire Agreement.................................................................. 5
Section 5.10 Assignment........................................................................ 5
Section 5.11 Interpretation.................................................................... 5
Section 5.12 Nonexclusive Remedies............................................................. 6
Section 5.13 Third-Party Beneficiaries......................................................... 6
Section 5.14 Counterparts; Effectiveness....................................................... 6
Section 5.15 Survival.......................................................................... 6
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TRANSITION SERVICES AGREEMENT
TRANSITION SERVICES AGREEMENT (this "AGREEMENT"), dated as of May 31,
2002, by and between Xxxxxxxx Corporation, a New York corporation ("XXXXXXXX"),
and EnPro Industries, Inc., a North Carolina corporation ("ENPRO").
RECITALS
A. The Board of Directors of Xxxxxxxx has determined that it is
in the best interests of Xxxxxxxx and its shareholders to separate Xxxxxxxx'x
engineered industrial products business from its other existing businesses.
B. The Board of Directors of Xxxxxxxx, after consultation with
Xxxxxxxx'x management and financial and legal advisors, has determined that it
is appropriate and in the best interests of Xxxxxxxx and the Xxxxxxxx
Shareholders to divest Xxxxxxxx'x indirect ownership interest in the EnPro
Business, through a pro rata distribution of all of the EnPro Common Stock to
the Xxxxxxxx Shareholders pursuant to the terms and subject to the conditions
of this Agreement (the "DISTRIBUTION").
X. Xxxxxxxx and EnPro are entering into a Distribution Agreement
(the "DISTRIBUTION AGREEMENT") and other Ancillary Agreements (as defined in
the Distribution Agreement), including this Agreement, that set forth the
matters relating to the relationship and the respective rights and obligations
of Xxxxxxxx and EnPro to one another following the Distribution.
D. In connection with the Distribution, Xxxxxxxx and EnPro have
agreed to enter into this Agreement in order for Xxxxxxxx to assist EnPro by
providing certain temporary transitional services and support not otherwise
specified in any of the Ancillary Agreements.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and undertakings contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Xxxxxxxx and EnPro hereby agree as follows:
ARTICLE 1
TERM
Section 1.01 Term of the Agreement. The term of this Agreement
shall be from the date hereof (the "EFFECTIVE DATE") to and including December
31, 2002 (the "TERM"), although the actual duration of specific services may be
for a shorter or longer period as provided on the Schedules attached hereto.
The Term may be extended by the mutual agreement of Xxxxxxxx and EnPro.
ARTICLE 2
SERVICES
Section 2.01 Services Provided by Xxxxxxxx. Xxxxxxxx shall
provide to EnPro during the Term of this Agreement the services listed on
Schedule A-1 and Schedule A-2 attached hereto. The services listed on
Schedule A-1 and Schedule A-2 are based on the understanding of the parties
hereto of the transitional services reasonably required by EnPro at the date of
this Agreement. EnPro may reduce or terminate any specific services at any time
upon 30 days' written notice.
Section 2.02 Payment for Services Provided by Xxxxxxxx.
(a) EnPro shall pay Xxxxxxxx on a monthly basis, for
services provided to EnPro by Xxxxxxxx hereunder, (i) amounts specified as
"Cost Allocated to EnPro" on Schedule A-1 and Schedule A-2, (ii) reasonable
out-of-pocket direct expenses incurred by Xxxxxxxx in connection with providing
services and (iii) charges by third party service providers that are
attributable to services provided to or for EnPro and are not included in (i)
or (ii) above. To the extent that EnPro has provided notice to reduce services
in accordance with Section 2.01 the "Cost Allocated to EnPro" shall be
appropriately reduced.
(b) Charges for the services shall be invoiced on or
about the tenth day of the calendar month next following the calendar month in
which the services have been performed, and such invoice shall be paid within
30 days following receipt thereof.
ARTICLE 3
CONTRACTS
Section 3.01 Use of Certain Contracts. Subject to the approval of
third party vendors or service providers, Xxxxxxxx will allow EnPro and its
U.S. subsidiaries (collectively the "ENPRO GROUP") to purchase goods and
services under or otherwise utilize the contracts listed in Schedule A-3 (the
"SUBJECT CONTRACTS") during the terms set forth in that schedule. EnPro's right
to purchase goods and services under or otherwise utilize the Subject Contracts
shall terminate at the end of the terms set forth in Schedule A-3 unless the
terms are extended by mutual agreement of Xxxxxxxx and EnPro.
Section 3.02 Payment for Goods and Services Purchased by the
EnPro Group Under the Subject Contracts. Any member of the EnPro Group shall
pay vendors/service providers directly for all goods and services received by
the EnPro Group under the Subject Contracts unless different methods of payment
or payees are set forth in Schedule A-3.
Section 3.03 Indemnification. EnPro shall be solely liable and
responsible for all costs incurred by the EnPro Group under the Subject
Contracts and shall indemnify, defend, save and hold harmless Xxxxxxxx and its
subsidiaries from and against every claim, obligation, liability, cost and
expense arising out of the EnPro Group's purchase of goods and services under
or other use of the Subject Contracts.
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ARTICLE 4
TERMINATION
Section 4.01 Automatic Termination. This Agreement automatically
will terminate at the conclusion of the Term unless such Term is extended in
accordance with Section 1.01 hereto.
Section 4.02 Termination With Notice. If either Xxxxxxxx or EnPro
(the "DEFAULTING PARTY") fails adequately to perform in any material respect
any of its material obligations under this Agreement, whether voluntarily or
involuntarily, the other may terminate this Agreement upon 120 days' written
notice to the Defaulting Party that it has so failed to perform its obligations
under this Agreement, unless during such period the Defaulting Party remedies
such failure.
Section 4.03 Mutual Cooperation and Additional Assumptions. Prior
to the termination of this Agreement, the parties shall reasonably cooperate in
good faith to facilitate an orderly transition of responsibility for the
services, and each party shall deliver to the other party copies of such
documents, records and information as are reasonably necessary to achieve such
transition. Upon the termination of this Agreement, Xxxxxxxx promptly shall
deliver to EnPro copies of all remaining documents, records and information in
Xxxxxxxx'x possession and owned by EnPro or to which EnPro is otherwise
entitled pursuant to the other Ancillary Agreements that may be reasonably
necessary for the other party to assume complete internal responsibility for
all of the services.
ARTICLE 5
GENERAL
Section 5.01 Amendments; Non-Waiver.
(a) Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by each party, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) The failure of either party to enforce at any time
or for any of the provisions hereof will not be construed to be a waiver of
such provisions or of the right of such party thereafter to enforce each and
every such provision.
Section 5.02 Notices. All notices, requests, consents and other
communications hereunder must be in writing and will be deemed to have been
duly given (a) when received if personally delivered or sent by facsimile, (b)
one business day after being sent by nationally recognized overnight delivery
service, or (c) five business days after being sent by nationally registered or
certified mail, return receipt requested, postage prepaid, and in each case
addressed as follows (any party by written notice to the other party in the
manner prescribed by this Section may change the address or the persons to whom
notices thereof shall be directed):
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To EnPro at: EnPro Industries, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
Fax Number: (000) 000-0000
with a copy to: Xxxxxxxx, Xxxxxxxx & Xxxxxx P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
To Xxxxxxxx at: Xxxxxxxx Corporation
Four Coliseum Centre
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
Fax Number: (000) 000-0000
with a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Section 5.03 Governing Law. This Agreement will be construed and
enforced in accordance with the internal substantive laws of the State of New
York, without giving effect to the principles of conflicts of law thereof.
Section 5.04 Level of Service. Xxxxxxxx undertakes to use the
same degree of care in rendering services under this Agreement as it
respectively utilizes in rendering such services for its own operations and
shall not be liable for any failure to provide services other than a failure
caused by or attributable to its gross negligence or intentional misconduct or
that of any of its affiliates, employees, officers or other agents. Nothing in
this Agreement will require Xxxxxxxx to perform or cause to be performed any
service in a manner that would constitute a violation of applicable laws.
Section 5.05 Transitional Nature of Services; Changes. The
parties acknowledge the transitional nature of the services and that either
party may make changes from time to time in the manner of performing the
services if such party is making similar changes in performing similar services
for its own operations and if such party furnishes to the other party
substantially the same notice (in content and timing) as such party furnishes
to those part of its own operations respecting such changes.
Section 5.06 Mutual Cooperation. EnPro, Xxxxxxxx and their
respective affiliates shall cooperate with each other in connection with the
performance of the services
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hereunder, including producing on a timely basis all information that is
reasonably requested with respect to the performance of the services and the
transition at the end of the Term; provided, however, that such cooperation
must not unreasonably disrupt the normal operations of EnPro, Xxxxxxxx and
their respective affiliates; provided, further, that the party requesting
cooperation shall pay all reasonable out-of-pocket costs and expenses incurred
by the party furnishing cooperation, unless otherwise expressly provided in
this Agreement or the Distribution Agreement.
Section 5.07 Independent Contractors. EnPro and Xxxxxxxx each
acknowledge that they are separate entities, each of which has entered into
this Agreement for independent business reasons. The relationships of EnPro to
Xxxxxxxx and of Xxxxxxxx to EnPro hereunder are those of independent
contractors and nothing contained herein shall be deemed to create a joint
venture, partnership or any other relationship.
Section 5.08 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon any such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner, to the end that the transactions contemplated by this Agreement are
consummated to the extent possible.
Section 5.09 Entire Agreement. This Agreement supersedes and
cancels any and all previous agreements, written or oral, between the parties
relating to the subject matter hereof. No representation, inducement, promise,
understanding, condition or warranty not set forth herein or in the
Distribution Agreement or the Ancillary Agreements has been made or relied upon
by any party. This Agreement, the Distribution Agreement and the Ancillary
Agreements express the complete and final understanding of the parties with
respect to the subject matter thereto and may not be changed in any way, except
by an instrument in writing signed by both parties.
Section 5.10 Assignment. This Agreement and the rights and duties
hereunder are binding upon and inure to the benefit of the successors and
permitted assigns of each of the parties to this Agreement, but are not
assignable or delegable by either party without the prior written consent of
the other, which consent shall not be unreasonably withheld.
Section 5.11 Interpretation. The headings contained in this
Agreement are solely for convenience of reference and shall not be given any
effect in the construction or interpretation of this Agreement. Whenever the
word "including" is used in this Agreement, it shall be deemed to be followed
by the words "without limitation." Whenever a reference is made in this
Agreement to a "party" or "parties," such reference shall be to a party or
parties to this Agreement unless otherwise indicated. The use of any gender
herein shall be deemed to be or include the other genders and the use of the
singular herein shall be deemed to include the plural (and vice versa),
wherever appropriate. Whenever a reference is made in this Agreement to an
Article, Section or Schedule, such reference shall be to an Article or Section
of, or a Schedule to, this Agreement unless otherwise indicated. The use of the
words "hereof" and
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"herein" and words of similar import shall refer to this entire Agreement and
not to any particular article, section, subsection, clause, paragraph or other
subdivision of this Agreement, unless the context clearly indicates otherwise.
Each party stipulates and agrees that the rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement to favor any party against the
other, and that no party, including any drafting party, shall have the benefit
of any legal presumption (including "meaning of the authors") or the detriment
of any burden of proof by reason of any ambiguity or uncertain meaning
contained in this Agreement.
Section 5.12 Nonexclusive Remedies. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 5.13 Third-Party Beneficiaries. Nothing contained in this
Agreement is intended to nor shall it confer upon any person or entity, other
than the parties hereto and their respective subsidiaries, successors and
permitted assigns, any benefit, right or remedies under or by reason of this
Agreement.
Section 5.14 Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
Section 5.15 Survival. All covenants and agreements of the
parties contained in this Agreement shall survive the Distribution Date.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the date first
above written.
XXXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
ENPRO INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President,
Secretary and General Counsel
