EXHIBIT 10.2
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TRANSITION SERVICES AGREEMENT
by and between
XXXXXXXX CORPORATION
and
ENPRO INDUSTRIES, INC.
dated as of
_______________, 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 TERMINATION....................................................2
Section 3.01 Automatic Termination...................................2
Section 3.02 Termination With Notice.................................2
Section 3.03 Mutual Cooperation and Additional Assumptions...........2
ARTICLE 4 GENERAL........................................................3
Section 4.01 Amendments; Non-Waiver..................................3
Section 4.02 Notices.................................................3
Section 4.03 Governing Law...........................................4
Section 4.04 Level of Service........................................4
Section 4.05 Transitional Nature of Services; Changes................4
Section 4.06 Mutual Cooperation......................................4
Section 4.07 Independent Contractors.................................4
Section 4.08 Severability............................................4
Section 4.09 Entire Agreement........................................5
Section 4.10 Assignment..............................................5
Section 4.11 Interpretation..........................................5
Section 4.12 Nonexclusive Remedies...................................5
Section 4.13 Third-Party Beneficiaries...............................5
Section 4.14 Counterparts; Effectiveness.............................6
Section 4.15 Survival................................................6
SCHEDULES
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Schedule A Services to be Provided to EnPro by Xxxxxxxx
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TRANSITION SERVICES AGREEMENT
TRANSITION SERVICES AGREEMENT (this "Agreement"), dated as of
________, 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 period as provided on Schedule A 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
attached hereto. The services listed on Schedule A 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 "Price for
Services Provided to EnPro" on Schedule A, (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 "Price for Services Provided 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
TERMINATION
Section 3.01 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 3.02 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 3.03 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.
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ARTICLE 4
GENERAL
Section 4.01 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 4.02 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):
To EnPro at: EnPro Industries, Inc.
_____ Xxxxxxxx Xxxxxxxxx, Xxxxx ______
Xxxxxxxxx, Xxxxx Xxxxxxxx _______
Attention: General Counsel
Fax Number: (704) ___-____
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
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with a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 441
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Section 4.03 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 4.04 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 4.05 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 4.06 Mutual Cooperation. EnPro, Xxxxxxxx and their respective
affiliates shall cooperate with each other in connection with the performance of
the services 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 4.07 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 4.08 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
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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 4.09 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 4.10 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 4.11 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
"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 4.12 Nonexclusive Remedies. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 4.13 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.
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Section 4.14 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 4.15 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:
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Name:
Title:
ENPRO INDUSTRIES, INC.
By:
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Name: Xxxxxxx X. Xxxxx, Esq.
Title: Senior Vice President,
Secretary and General Counsel
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