EXHIBIT 10.2
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (the "Agreement") is
entered into as of the __ day of ____, 2003 between Transocean Holdings Inc., a
Delaware corporation ("Transocean Holdings"), and TODCO, a Delaware corporation
("TODCO").
WHEREAS, Transocean Inc., a Cayman Islands company
("Transocean"), Transocean Holdings and TODCO currently contemplate that TODCO
will make an initial public offering ("IPO") of shares of TODCO Class A Common
Stock held by Transocean and Transocean Holdings;
WHEREAS, TODCO, as a wholly-owned Subsidiary, has previously
received certain administrative and support services from Transocean Holdings
and its Affiliates; and
WHEREAS, in order to effect an orderly transition by TODCO to
a separate, stand-alone entity following the IPO, TODCO desires Transocean
Holdings and its Affiliates to provide the services described herein.
NOW, THEREFORE, in consideration of the premises and the
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. All capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Master Separation Agreement ("Separation Agreement") entered into as of the date
hereof among Transocean Holdings, TODCO and Transocean.
ARTICLE II
SERVICES
SECTION 2.1 Services. Subject to the terms and conditions of
this Agreement, Transocean Holdings, acting through its and/or its Affiliates'
respective employees, agents, contractors or independent third parties, agrees
to provide or cause to be provided to TODCO and its Subsidiaries the services
set forth in Exhibits A-__ hereto (including any additional services provided
pursuant to Section 2.3, all of such services collectively referred to herein as
the "Services). At all times during the performance of the Services, all Persons
performing such Services (including agents, temporary employees, independent
third parties and consultants) shall be construed as being independent from the
TODCO Group and such Persons shall not be considered or deemed to be an employee
of any member of the TODCO Group nor entitled to any employee benefits of TODCO
as a result of this Agreement.
SECTION 2.2 Service Coordinators. Each party will nominate a
representative to act as the primary contact Person with respect to the
provision of the Services as contemplated
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by this Agreement (the "Service Coordinators"). The initial Service Coordinators
shall be Xxxxxxx Xxxx for Transocean Holdings and Xxxxx X'Xxxxx for TODCO.
Unless Transocean Holdings and TODCO otherwise agree, Transocean Holdings and
TODCO agree that all notices and communications relating to this Agreement other
than those day to day communications and xxxxxxxx relating to the actual
provision of the Services shall be directed to the Service Coordinators in
accordance with Section 11.2 hereof.
SECTION 2.3 Additional Services. From the date hereof until 12
months following the IPO Closing Date, TODCO may request additional Services
from Transocean Holdings by providing written notice. Upon mutual agreement as
to the cost, duration and scope of such additional Services, Transocean Holdings
and TODCO may supplement in writing the Exhibits hereto to include such
additional Services.
SECTION 2.4 Third Party Services. Transocean Holdings shall
have the right to hire third party subcontractors to provide all or part of any
Service hereunder; provided, that, in the event such subcontracting is
inconsistent with past practices and the practice applied by Transocean
generally from time to time within its own organization, Transocean Holdings
obtain the prior written consent of TODCO, which consent shall not be
unreasonably withheld.
SECTION 2.5 Standard of Performance; Limitation of Liability.
The Services to be provided hereunder shall be performed with the same general
degree of care as when performed within the Transocean organization. In the
event Transocean Holdings or its Affiliates fail to provide the Services in
accordance herewith, the sole and exclusive remedy of TODCO shall be to, at
TODCO's sole discretion, either (i) have the Service reperformed, or (ii) not
pay for such Service, or if payment has already been made, receive a refund of
the payment made therefor; provided that in the event Transocean Holdings
defaults in the manner described in Section 7.1(ii), TODCO shall have the
further rights set forth in Section 7.1. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION 2.5, NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, IMPLIED OR EXPRESSED,
ARE MADE BY TRANSOCEAN HOLDINGS OR ITS AFFILIATES WITH RESPECT TO THE SERVICES
UNDER THIS AGREEMENT AND ALL SUCH REPRESENTATIONS OR WARRANTIES ARE HEREBY
WAIVED AND DISCLAIMED. TODCO HEREBY EXPRESSLY WAIVES ANY RIGHT TODCO MAY
OTHERWISE HAVE FOR ANY LOSSES, TO ENFORCE SPECIFIC PERFORMANCE OR TO PURSUE ANY
OTHER REMEDY AVAILABLE IN CONTRACT, AT LAW OR IN EQUITY IN THE EVENT OF ANY
NON-PERFORMANCE, INADEQUATE PERFORMANCE, FAULTY PERFORMANCE OR OTHER FAILURE OR
BREACH BY TRANSOCEAN HOLDINGS OR ITS AFFILIATES UNDER OR RELATING TO THIS
AGREEMENT, NOTWITHSTANDING THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT OR
ACTIVE OR PASSIVE) OR GROSS NEGLIGENCE OF TRANSOCEAN HOLDINGS OR ITS AFFILIATES
OR ANY OTHER PERSON INVOLVED IN THE PROVISION OF SERVICES AND WHETHER DAMAGES
ARE ASSERTED IN CONTRACT OR TORT, UNDER FEDERAL, STATE OR FOREIGN LAWS OR OTHER
STATUTE OR OTHERWISE.
SECTION 2.6 Conflict with Laws. Notwithstanding any other
provision hereof, Transocean Holdings shall not be required to provide a Service
to the extent the provision thereof would violate or contravene an applicable
Law. To the extent that the provision of any
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such Service would violate an applicable Law, the parties agree to work together
in good faith to provide such Service in a manner which would not violate any
Law.
ARTICLE III
SERVICE CHARGES
SECTION 3.1 Compensation. Each Service will be provided at the
price indicated in the corresponding Exhibit hereto.
ARTICLE IV
PAYMENT
SECTION 4.1 Payment. Charges for Services shall be invoiced
monthly by Transocean Holdings or the Transocean Holdings Affiliate providing
the Service. TODCO shall make the corresponding payment no later than 30
calendar days after receipt of the invoice. Each invoice shall be directed to
the TODCO Service Coordinator or such other person designated in writing from
time to time by such Coordinator. The invoice shall set forth in reasonable
detail for the period covered by such invoice: (i) the Services rendered, (ii)
the basis for the calculation of the costs as set forth in Section 3.1 if
applicable, and (iii) such additional information as TODCO may reasonably
request at least 30 days in advance of the xxxxxxxx for a particular Service. In
the event there is any dispute with respect to an invoice, TODCO shall make the
payment for all non-disputed portions in accordance herewith.
ARTICLE V
TERM
SECTION 5.1 Term. The term of this Agreement shall commence
upon the [IPO Closing Date] and shall continue in force until the termination of
all Services in accordance with the duration of such Services set forth in the
Exhibits hereto or as otherwise set forth herein.
ARTICLE VI
DISCONTINUATION OF SERVICES
SECTION 6.1 Discontinuation of Services. Except for those
Services for which a minimum duration has been set in the Exhibits hereto, TODCO
may, with Transocean Holdings' prior written consent, elect to discontinue any
individual Service from time to time. Transocean Holdings may withhold such
consent in its sole discretion.
ARTICLE VII
DEFAULT
SECTION 7.1 Termination for Default. In the event (i) of a
failure of TODCO to pay for Services in accordance with the terms of this
Agreement, or (ii) of a failure of Transocean Holdings to perform, or cause to
be performed, the Services in accordance with the terms of this Agreement which
failure results or could reasonably result in a material adverse impact on the
business, operations or financial results of TODCO, then in either case the
non-defaulting party shall have the right, at its sole discretion, to terminate
this Agreement if the defaulting party has (A) failed to cure the default within
30 days of receipt of the written notice
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of default or, (B) if such default is not reasonably susceptible to cure within
a 30 day period, taken action within 30 days of receipt of the written notice of
default reasonably designed to cure such default as soon as is reasonably
practicable. TODCO's right to terminate this Agreement set forth in (ii) above
and the rights set forth in Section 2.5 shall constitute TODCO's sole and
exclusive rights and remedies for a breach by Transocean Holdings hereunder
(including without limitation any breach caused by an Affiliate of Transocean
Holdings or other third party providing a Service hereunder).
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Personal Injury. EACH PARTY (AS AN INDEMNIFYING
PARTY) SHALL ASSUME ALL LIABILITY FOR AND SHALL RELEASE, DEFEND, INDEMNIFY AND
HOLD THE OTHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS,
DIRECTORS AND AGENTS (ALL AS INDEMNIFIED PARTIES) FREE AND HARMLESS FROM AND
AGAINST ALL LOSSES IN CONNECTION HEREWITH IN RESPECT OF INJURY TO OR DEATH OR
SICKNESS OF ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF THE INDEMNIFYING PARTY, ITS
AFFILIATES OR THEIR CONTRACTORS OR SUBCONTRACTORS OF ANY TIER, HOWSOEVER ARISING
AND WHETHER OR NOT CAUSED BY THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT
OR ACTIVE OR PASSIVE) OR GROSS NEGLIGENCE OF THE INDEMNIFIED PARTIES, EXCEPT TO
THE EXTENT SUCH LOSS IS CAUSED BY THE WILLFUL MISCONDUCT OF AN INDEMNIFIED
PARTY.
SECTION 8.2 Property Damage. EACH PARTY (AS AN INDEMNIFYING
PARTY) SHALL ASSUME ALL LIABILITY FOR AND SHALL RELEASE, DEFEND, INDEMNIFY AND
HOLD THE OTHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS,
DIRECTORS AND AGENTS (ALL AS INDEMNIFIED PARTIES) HARMLESS FROM AND AGAINST ALL
LOSSES IN CONNECTION HEREWITH IN RESPECT OF LOSS OF OR DAMAGE TO PROPERTY OWNED
BY SUCH INDEMNIFYING PARTY, ITS AFFILIATES, THEIR CONTRACTORS OR SUBCONTRACTORS
OF ANY TIER OR THEIR RESPECTIVE EMPLOYEES, AGENT OR REPRESENTATIVE, HOWSOEVER
ARISING AND WHETHER OR NOT CAUSED BY THE NEGLIGENCE (WHETHER SOLE, JOINT OR
CONCURRENT OR ACTIVE OR PASSIVE) OR GROSS NEGLIGENCE OF THE INDEMNIFIED PARTIES,
EXCEPT TO THE EXTENT SUCH LOSS IS CAUSED BY THE WILLFUL MISCONDUCT OF AN
INDEMNIFIED PARTY.
SECTION 8.3 Services Received. TODCO hereby acknowledges and
agrees that:
(a) the Services to be provided hereunder are subject to and
limited by the provisions of Section 2.5 - Standard of Performance,
Section 7.1 - Termination and the other provisions hereof, including
without limitation, the limitation of remedies available to TODCO which
restricts available remedies resulting from a Service not provided in
accordance with the terms hereof to either non-payment or reperformance
of such
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defective Service and, in certain limited circumstances, the right to
terminate this Agreement;
(b) the Services are being provided solely as a result of the
IPO, and Transocean Holdings and its Affiliates do not provide any such
Services to non-Affiliates;
(c) it is not the intent of Transocean Holdings and its
Affiliates to render, nor of TODCO to receive from Transocean Holdings
and its Affiliates, professional advice or opinions, whether with
regard to tax, legal, treasury, finance, employment or other matters;
TODCO shall not rely on any Service rendered by or on behalf of
Transocean Holdings for such professional advice or opinions; and TODCO
shall seek all third party professional advice and opinions as it may
desire or need, and in any event TODCO shall be responsible for and
assume all risks associated with the Services, except to the limited
extent set forth in Sections 2.5 and 7.1; and
(d) a material inducement to Transocean Holdings' agreement to
provide the Services is the limitation of liability set forth herein
and the release and indemnity provided by TODCO.
ACCORDINGLY, EXCEPT WITH REGARD TO THE LIMITED REMEDIES AND
INDEMNITIES EXPRESSLY SET FORTH HEREIN, TODCO SHALL ASSUME ALL LIABILITY FOR AND
SHALL FURTHER RELEASE, DEFEND, INDEMNIFY AND HOLD THE OTHER PARTY, ITS
AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS (ALL
AS INDEMNIFIED PARTIES) FREE AND HARMLESS FROM AND AGAINST ALL LOSSES RESULTING
FROM, ARISING UNDER OR RELATED TO THE SERVICES, HOWSOEVER ARISING AND WHETHER OR
NOT CAUSED BY THE NEGLIGENCE OR GROSS NEGLIGENCE OF TRANSOCEAN HOLDINGS, ITS
AFFILIATES OR ANY THIRD PARTY SERVICE PROVIDER.
ARTICLE IX
CONFIDENTIALITY
SECTION 9.1 Confidentiality. TODCO and Transocean Holdings
each acknowledge and agree that the terms of Section [7.13 - Confidentiality] of
the Separation Agreement shall apply to information, documents, plans and other
data made available or disclosed by one party to the other in connection with
this Agreement.
ARTICLE X
FORCE MAJEURE
SECTION 10.1 Performance Excused. Continued performance of a
Service may be suspended immediately to the extent caused by any event or
condition beyond the reasonable control of the party suspending such performance
including acts of God, fire, labor or trade disturbance, war, civil commotion,
compliance in good faith with any Law, unavailability of materials or other
event or condition whether similar or dissimilar to the foregoing (a "Force
Majeure Event").
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SECTION 10.2 Notice. The party claiming suspension due to a
Force Majeure Event will give prompt notice to the other of the occurrence of
the Force Majeure Event giving rise to the suspension and of its nature and
anticipated duration.
SECTION 10.3 Cooperation. The parties shall cooperate with
each other to find alternative means and methods for the provision of the
suspended Service.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Construction Rules. The article and section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. As used
in this Agreement, unless otherwise provided to the contrary, (i) all references
to days or months shall be deemed references to calendar days or months and (ii)
any reference to a "Section," "Article" or "Appendix" shall be deemed to refer
to a section or article of this Agreement or an appendix to this Agreement. The
words "hereof," "herein" and "hereunder" and words of similar import referring
to this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." Unless otherwise specifically provided for
herein, the term "or" shall not be deemed to be exclusive.
SECTION 11.2 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon (i) a transmitter's
confirmation of a receipt of a facsimile transmission, (ii) confirmed delivery
of a standard overnight courier or when delivered by hand or (iii) the
expiration of five business days after the date mailed by certified or
registered mail (return receipt requested), postage prepaid, to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice):
If to Transocean Holdings, to:
Transocean Holdings Inc.
Attention: Corporate Secretary
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000)000-0000
If to TODCO, to:
TODCO
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Houston, Texas _____
Attention: Corporate Secretary
Facsimile: (000) 000-0000
SECTION 11.3 Assignment, Binding Effect. Neither this
Agreement nor any of the rights, benefits or obligations hereunder may be
assigned or delegated by TODCO or Transocean Holdings (whether by operation of
law or otherwise) without the prior written
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consent of the other party; provided however that the foregoing shall in no way
restrict the performance of a Service by an Affiliate of Transocean Holdings or
a third party as otherwise allowed hereunder.
SECTION 11.4 No Third Party Beneficiaries. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any Person
(other than TODCO, Transocean Holdings and any Transocean Holdings Affiliate
providing Services hereunder or their respective successors or permitted
assigns) any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, and no Person (except as so
specified) shall be deemed a third-party beneficiary under or by reason of this
Agreement.
SECTION 11.5 Amendment. No amendments, additions to,
alterations, modifications or waivers of all or any part of this Agreement shall
be of any effect, whether by course of dealing or otherwise, unless explicitly
set forth in writing and executed by both parties hereto. If the provisions of
this Agreement and the provisions of any purchase order or order acknowledgment
written in connection with this Agreement conflict, the provisions of this
Agreement shall prevail.
SECTION 11.6 Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach. The failure of any party to require performance
of any provision of this Agreement shall not affect any party's right to full
performance thereof at any time thereafter.
SECTION 11.7 Severability. If any provision of this Agreement
or the application of any such provision to any Person or circumstance shall be
declared judicially to be invalid, unenforceable or void, such decision shall
not have the effect of invalidating or voiding the remainder of this Agreement,
it being the intent and agreement of TODCO and Transocean Holdings that this
Agreement shall be deemed amended by modifying such provision to the extent
necessary to render it valid, legal and enforceable while preserving its intent
or, if such modification is not possible, by substituting therefor another
provision that is legal and enforceable and that achieves the same objective.
SECTION 11.8 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one agreement binding on TODCO and
Transocean Holdings.
SECTION 11.9 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Texas without
giving effect to the conflicts of law principles thereof.
SECTION 11.10 Arbitration. All disputes and controversies
which may arise out of or in connection with this Agreement and are not resolved
through good faith negotiation shall be settled by binding arbitration. The
arbitration will take place in Houston, Texas and shall be conducted in
accordance with the procedures of [the Center for Public Resources of New York
("CPR")]. The dispute shall be decided by a single arbitrator selected by the
parties; provided the parties are able to agree as set forth herein. The
arbitration shall be initiated by providing written notice to the other party.
The party so initiating the proceedings shall provide the other
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party in writing three (3) names of potential arbitrators within fifteen (15)
days of giving notice to initiate arbitration. The other party will thereafter
have thirty (30) days to either select one of the three individuals or reject
all three (a "Rejection"). Failure to timely respond shall be deemed a
Rejection. Should the parties be unable to agree on a single arbitrator, each
shall choose a single arbitrator within fifteen (15) days of the Rejection by
providing written notice to the other party, and the two (2) arbitrators shall
mutually select the third. The award of the arbitration shall be final and
binding upon both parties and may be enforced in any court of competent
jurisdiction.
SECTION 11.11 Relationship of Parties. This Agreement does not
create a fiduciary relationship, partnership, joint venture or relationship of
trust or agency between the parties.
SECTION 11.12 Further Assurances. From time to time, each
party agrees to execute and deliver such additional documents, and will provide
such additional information and assistance as any party may reasonably require
to carry out the terms of this Agreement.
SECTION 11.13 Regulations. All employees of Transocean
Holdings and its Affiliates shall, when on the property of TODCO, conform to the
rules and regulations of TODCO concerning safety, health and security which are
made known to such employees in advance in writing.
SECTION 11.14 Survival. The parties agree that Articles VIII
and IX will survive the termination of this Agreement and that any such
termination shall not affect any obligation for the payment of Services rendered
prior to termination.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of this ___ day of _______, 2003.
TRANSOCEAN HOLDINGS INC.
By:
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Name:
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Title:
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TODCO
By:
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Name:
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Title:
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