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Exhibit F
Execution Copy
SERVICES AND SUPPORT AGREEMENT
This Services and Support Agreement ("Agreement"), dated September 30,
1999, is made and entered into by and between GENCORP INC., an Ohio corporation
("GenCorp"), and OMNOVA SOLUTIONS INC., an Ohio corporation ("OMNOVA") and a
wholly-owned subsidiary of GenCorp.
WITNESSETH:
WHEREAS, the Board of Directors of GenCorp has determined that it is
advisable to distribute substantially all of the stock of OMNOVA to its
shareholders in a transaction intended to qualify under Section 355 of the
Internal Revenue Code (the "Distribution");
WHEREAS, GenCorp and OMNOVA are entering into a Distribution Agreement
(the "Distribution Agreement") which, among other things, sets forth the
principal transactions required to effect the Distribution and sets forth other
agreements that will govern certain other matters following the Distribution;
and
WHEREAS, in connection with the Distribution, GenCorp and OMNOVA have
agreed to enter into this Agreement in order for OMNOVA and GenCorp each to
assist the other by providing to the other certain services and support not
otherwise specified in any of the Ancillary Agreements (as defined in the
Distribution Agreement) other than this Agreement (the "Other Agreements");
NOW THEREFORE, in consideration of these premises and the mutual
promises and conditions contained herein, GenCorp and OMNOVA hereby agree as
follows:
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ARTICLE I
TERM
1.1 TERM OF THE AGREEMENT. The term of this Agreement shall be from
the date hereof to and including October 31, 2001 (the "Term"), although the
actual duration of specific services may be for a shorter period as provided
herein. The Term, or the duration of specific services, may be extended by the
mutual agreement of GenCorp and OMNOVA.
ARTICLE II
SERVICES
2.1 SERVICES PROVIDED BY OMNOVA. OMNOVA shall provide, or cause its
relevant affiliates to provide, to GenCorp during the Term 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 support and administrative
services reasonably expected to be required by GenCorp following the
Distribution. If, following the Distribution, GenCorp reasonably determines that
additional services consistent with recent historical practices should be
provided by OMNOVA, the parties agree to negotiate in good faith to modify this
Agreement appropriately with respect to such additional services. In the event
the parties agree that OMNOVA shall provide such additional services, the
parties hereto further agree that such agreement to provide such additional
services shall also amend Schedule A hereto to reflect such agreement of the
parties. GenCorp may reduce or terminate any specific services at any time upon
30 days written notice.
2.2 PAYMENT FOR SERVICES PROVIDED BY OMNOVA. (a) GenCorp shall pay
OMNOVA on a monthly basis, in consideration of the services provided to GenCorp
by
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OMNOVA hereunder, (i) the amounts specified as "Costs Allocated to GenCorp" on
Schedule A, (ii) reasonable out-of-pocket expenses incurred by OMNOVA in
connection with providing to GenCorp the services listed on Schedule A, and
(iii) charges by third party service providers to the extent that they are
attributable to services provided to or for GenCorp. To the extent that GenCorp
has provided notice to reduce services in accordance with Section 2.1, the
"Costs Allocated to GenCorp" shall be appropriately reduced.
(b) Charges for the services shall be invoiced on or about the
tenth (10th) day of the calendar month next following the calendar month in
which the services have been performed. Each invoice shall describe in
reasonable detail, as appropriate, the services upon which the amount to be
charged is based, and such invoice shall be paid within thirty (30) days
following receipt thereof.
2.3 SERVICES PROVIDED BY GENCORP. GenCorp shall provide, or cause its
relevant affiliates to provide, to OMNOVA during the Term the services listed on
Schedule B attached hereto. The services listed on Schedule B are based on the
understanding of the parties hereto of the support and administrative services
reasonably expected to be required by OMNOVA following the Distribution. If,
following the Distribution, OMNOVA reasonably determines that additional
services consistent with recent historical practices should be provided by
GenCorp, the parties agree to negotiate in good faith to modify this Agreement
appropriately with respect to such additional services. In the event the parties
agree that OMNOVA shall provide such additional services, the parties hereto
further agree that such agreement to provide such additional services shall also
amend Schedule B hereto to reflect such agreement of the parties. OMNOVA may
reduce or terminate any specific services at any time upon 30 days written
notice.
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2.4 PAYMENT FOR SERVICES PROVIDED BY GENCORP.
(a) OMNOVA shall pay GenCorp on a monthly basis, in
consideration of the services provided to OMNOVA by GenCorp hereunder, (i) the
amounts specified as "Costs Allocated to OMNOVA" on Schedule B, (ii) reasonable
out-of-pocket expenses incurred by GenCorp in connection with providing
services, and (iii) charges by third party service providers to the extent that
they are attributable to services provided to or for OMNOVA. To the extent that
OMNOVA has provided notice to reduce services in accordance with Section 2.3,
the "Costs Allocated to OMNOVA" shall be appropriately reduced.
(b) Charges for the services shall be invoiced on or about the
tenth (10th) day of the calendar month next following the calendar month in
which the services have been performed. Each invoice shall describe in
reasonable detail, as appropriate, the services upon which the amount to be
charged is based, and such invoice shall be paid within thirty (30) days
following receipt thereof.
ARTICLE III
TERMINATION
3.1 AUTOMATIC TERMINATION. This Agreement automatically shall
terminate at the conclusion of the Term unless such Term is extended in
accordance with Section 1.1 hereto.
3.2 TERMINATION WITH NOTICE. If either GenCorp or OMNOVA (the
"Defaulting Party") shall fail 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 one hundred twenty (120) days'
written notice to the Defaulting Party that it has so failed to
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perform its obligations under this Agreement, unless during such period the
Defaulting Party shall have remedied such failure.
3.3 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
provided pursuant to this Agreement, 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,
each party promptly shall deliver to the other party copies of all remaining
documents, records and information in such party's possession and owned by the
other party that may be reasonably necessary for the other party to assume
complete internal responsibility for all of the services provided pursuant to
this Agreement.
ARTICLE IV
TERMS RELATED TO SPECIFIC SERVICES
4.1 EMPLOYEE BENEFITS ADMINISTRATION. (a) GenCorp will continue to
employ a Benefits Transition Team ("Team") to be based at OMNOVA's corporate
headquarters in Fairlawn, Ohio. The responsibilities of the Team will include
(i) administration of GenCorp's employee benefit plans, (ii) transfer of
administrative responsibility for GenCorp's employee benefit plans to GenCorp's
new corporate headquarters in California and/or to GenCorp Vehicle Sealing
headquarters, and (iii) implementation and administration of new employee
benefit plans for OMNOVA as described on Schedule B. The Team will report to
OMNOVA's Director, Compensation and Benefits, regarding its responsibilities to
administer employee benefit plans
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for OMNOVA. GenCorp and OMNOVA hereby agree to cooperate to establish and manage
priorities for the Team in connection with fulfilling its responsibilities for
both parties.
(b) In connection with the Team's administration of GenCorp's
employee benefit plans, OMNOVA will process and pay certain welfare benefits to
or for GenCorp plan participants with OMNOVA funds. Notwithstanding Section 2.2,
GenCorp agrees to reimburse OMNOVA for any and all such payments, by wire
transfer, on the business day next following each payment by OMNOVA.
(c) GenCorp shall, at its own cost and expense, (a) defend
OMNOVA from any and all claims, damages, actions or causes of action ("Claims")
which result from GenCorp's employment and/or termination of employment of any
of the employees included in its Benefits Transition Team on or after the
Distribution Date, and (b) indemnify and hold OMNOVA harmless from all damages,
liabilities, losses, costs, judgments, orders, assessments, interest, penalties,
fines, settlement payments, costs and expenses (including, without limitation,
attorneys fees and other investigation and defense costs and expenses) imposed
upon or incurred by OMNOVA as a result of any such Claim. OMNOVA shall promptly
notify GenCorp of any Claim and GenCorp shall be entitled to assume and maintain
control over the defense of any Claim and any negotiations and settlement
thereof with counsel reasonably acceptable to OMNOVA, provided that GenCorp will
not settle any such Claim without the consent of OMNOVA which consent shall not
be unreasonably withheld. In the event that GenCorp fails to promptly assume and
diligently investigate and defend or settle any Claim then OMNOVA shall have the
right, at GenCorp's cost, expense and risk, from that time forward to have sole
control of the defense of the Claim and all negotiations for its settlement or
compromise. The party not
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controlling the defense of any such Claim shall have the right to participate,
at its sole expense, in the defense or settlement thereof.
4.2 PAYROLL SERVICES. In connection with payroll services described
on Schedule A, OMNOVA will process and pay certain salaries and wages and
related payroll taxes with OMNOVA funds. Notwithstanding Section 2.2, GenCorp
agrees to reimburse OMNOVA for any and all such payments, by wire transfer, on
the business day next following GenCorp's receipt of notice of each payment by
OMNOVA.
4.3 CUSTOMER FINANCIAL SERVICES. In connection with customer
financial services described on Schedule A, OMNOVA will process and pay certain
accounts payable for GenCorp Vehicle Sealing with OMNOVA funds. Notwithstanding
Section 2.2, GenCorp agrees to reimburse OMNOVA for any and all such payments,
by wire transfer, on the business day next following GenCorp's receipt of notice
of each payment by OMNOVA.
4.4 LEASED EMPLOYEES. (a) GenCorp will continue to employ the
individuals named as Leased Employees on Schedule B, until their respective
retirement dates determined under GenCorp's 1999 Voluntary Enhanced Retirement
Program. The Leased Employees will provide services to OMNOVA as directed by
OMNOVA. GenCorp shall be exclusively responsible for all wages, benefits,
withholdings and other employment-related matters in respect of Leased
Employees.
(b) GenCorp shall, at its own cost and expense, (i) defend
OMNOVA from any and all claims, damages, actions or causes of action ("Claims")
which result from GenCorp's employment and/or termination of employment of any
of the Leased Employees prior to, on or after the Distribution Date, and (ii)
indemnify and hold OMNOVA harmless from all damages, liabilities, losses, costs,
judgments, orders, assessments, interest, penalties, fines, settlement
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payments, costs and expenses (including, without limitation, attorneys fees and
other investigation and defense costs and expenses) imposed upon or incurred by
OMNOVA as a result of any such Claim. OMNOVA shall promptly notify GenCorp of
any Claim and GenCorp shall be entitled to assume and maintain control over the
defense of any Claim and any negotiations and settlement thereof with counsel
reasonably acceptable to OMNOVA provided that GenCorp will not settle any such
Claim without the consent of OMNOVA which consent shall not be unreasonably
withheld. In the event that GenCorp fails to promptly assume and diligently
investigate and defend or settle any Claim then OMNOVA shall have the right, at
GenCorp's cost, expense and risk, from that time forward to have sole control of
the defense of the Claim and all negotiations for its settlement or compromise.
The party not controlling the defense of any such Claim shall have the right to
participate, at its sole expense, in the defense or settlement thereof.
4.5 ACCESS TO WAREHOUSE. GenCorp shall grant OMNOVA reasonable access
to the Xxxxxx Road Warehouse for storing, maintaining or retrieving Records and
other OMNOVA assets and shall give OMNOVA reasonable advance written notice of
any termination or non-renewal of the lease of such Warehouse.
ARTICLE V
GENERAL
5.1 NON-WAIVER. The failure of either party to enforce at any time or
for any of the provisions hereof shall 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.
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5.2 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be delivered by hand,
mailed by registered or certified mail (return receipt requested), or sent by
telecopy or by a nationally recognized overnight courier service, to the parties
at the following addresses (or such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on which such
notice is received:
To OMNOVA at: OMNOVA Solutions Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
Fax Number: 000-000-0000
To GenCorp at: GenCorp Inc.
Xxxxxxx 00 & Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Fax Number: 000-000-0000
5.3 GOVERNING LAW. This Agreement shall be governed by and enforced
in accordance with the internal laws of the State of Ohio, without regard to the
conflicts of law principles thereof.
5.4 LEVEL OF SERVICE. OMNOVA and GenCorp each severally undertake to
provide the same quality of services and 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.
5.5 SEVERABILITY. In the event any provision of this Agreement or
portion thereof is found to be wholly or partially invalid, illegal or
unenforceable in any judicial proceeding, then such provision shall be deemed to
be modified or restricted to the extent and in the manner necessary to render
the same valid and enforceable or shall be deemed excised from this
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Agreement, as the case may require, and this Agreement shall be construed and
enforced to the maximum extent permitted by law as if such provision had been
originally incorporated herein as so modified or restricted, or as if such
provision had not been originally incorporated herein, as the case may be.
5.6 ENTIRE AGREEMENT. This Agreement supersedes and cancels any and
all previous agreements, written or oral, between the parties relating to the
subject matter hereof. This Agreement and the Other Agreements expresses 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.
5.7 ASSIGNMENT. Neither of the parties shall assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party, which consent shall not unreasonably be withheld.
IN WITNESS WHEREOF, the parties have hereunto caused their authorized
representative to execute this Agreement as of the day and year first above
written.
GENCORP INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President
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OMNOVA SOLUTIONS INC.
By: /s/ Xxxxx X. XxXxx
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Name: Xxxxx X. XxXxx
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Title: Senior Vice President
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