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EXHIBIT 10.3
FORM OF TRANSITION SERVICES AGREEMENT
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TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this "Agreement") is entered into
as of ______________, 1999, between Xxxxxxxxxxx International, Inc., a Delaware
corporation ("Weatherford"), and Grant Prideco, Inc., a Delaware corporation,
on behalf of itself and each of its Affiliates (collectively, "Grant Prideco").
W I T N E S S E T H
WHEREAS, Weatherford and Xxxxx Prideco are parties to the Distribution
Agreement and other related agreements; and
WHEREAS, Weatherford and Grant Prideco desire for Weatherford and its
Affiliates to provide certain services to Grant Prideco;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Weatherford and Xxxxx Prideco, each on behalf of itself and its
Affiliates, hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms or other defined terms used but not defined in
this Agreement are used in this Agreement with the following meanings:
"AFFILIATE" means, with respect to Weatherford or Grant Prideco, any
Person, that directly or indirectly, is in control of, is controlled by,
controls or is under common control of Weatherford or Xxxxx Prideco, as the
case may be. For purposes of this definition, control shall include the
ownership of 50% or more of the legal or beneficial interest in any Person or
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise. A Person who is an Affiliate shall only be considered an Affiliate
for so long as that Person meets the definition of an Affiliate. An officer,
director, general partner, managing member or trustee of a Person or Affiliate
of such Person shall not be considered to be an Affiliate unless such Person is
under the direct or indirect control or common control of Weatherford or Grant
Prideco, as the case may be.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in Houston, Texas are authorized or
required to close.
"CLOSING DATE" shall mean the effective date of the Distribution
Agreement or such other date as the parties shall agree to in writing.
"DISTRIBUTION AGREEMENT" shall mean that certain Distribution
Agreement dated as of ________________, 1999, by and between Weatherford and
Xxxxx Prideco, as the same may be amended or otherwise modified from time to
time pursuant to the terms thereof.
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"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"PERSON" shall mean an individual, partnership, corporation, business
trust, limited liability company, limited liability partnership, joint stock
company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
ARTICLE II
WEATHERFORD SERVICES
2.1 SERVICES. Weatherford agrees to provide, or cause its
Affiliates to provide, the services described below to Grant Prideco:
(a) Treasury Services. Weatherford will provide, or
cause to be provided, the treasury services set forth on ANNEX A (the "Treasury
Services"). Weatherford will allocate to Grant Prideco a proportional amount
of the costs and expenses of Xxxxxxxxxxx'x Treasury Department to the extent
they relate to matters associated with Grant Prideco and its operations. Grant
Prideco agrees to pay Weatherford for such proportional amount and for all
additional costs, fees, expenses, penalties, taxes and interest incurred by
Weatherford relating to the provision of the Treasury Services.
(b) Insurance and Risk Management Services. Weatherford
will provide, or cause to be provided, the insurance and risk management
services set forth on ANNEX B (the "Insurance and Risk Management Services").
Weatherford will allocate to Grant Prideco a proportional amount of the costs
and expenses of Xxxxxxxxxxx'x Risk Management Department to the extent they
relate to matters associated with Grant Prideco and its operations. Grant
Prideco agrees to pay Weatherford for such proportional amount and for all
additional costs, fees, expenses, penalties, taxes and interest incurred by
Weatherford relating to the provision of the Insurance and Risk Management
Services. Grant Prideco shall be solely responsible for, and shall reimburse
Weatherford for, the amount of any retentions, deductibles or any other
payments for any claims relating to Grant Prideco.
(c) Legal Services. Weatherford will make its legal
staff available to Grant Prideco on a reasonable basis (the "Legal Services").
Grant Prideco shall pay Weatherford for all costs, fees and expenses incurred
by Weatherford relating to the provision of the Legal Services.
(d) Tax Services. Weatherford will provide general tax
supervision and oversight and assistance relating to the tax accounting of
Grant Prideco, including assistance with the preparation and filing of the
state, federal and foreign tax returns and assistance with the maintenance of
tax records (collectively, the "Tax Services"). Weatherford will allocate to
Grant Prideco a proportional amount of the costs and expenses of Xxxxxxxxxxx'x
Tax Department to the extent they relate to matters associated with Grant
Prideco and its operations, including the costs of the preparation and filing
of state, federal and foreign tax returns. Grant Prideco agrees to pay
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Weatherford for such proportional amount and for all additional costs, fees,
expenses, penalties, taxes and interest incurred by Weatherford relating to the
provision of the Tax Services.
(e) Management Information Systems Services. Weatherford
will provide the management information system services set forth on ANNEX C
(the "MIS Services"). Weatherford will allocate to Grant Prideco a
proportional amount of the costs and expenses of Xxxxxxxxxxx'x MIS Department
to the extent they relate to matters associated with Grant Prideco and its
operations. Grant Prideco agrees to pay Weatherford for such proportional
amount and for all additional costs, fees, expenses, penalties, taxes and
interest incurred by Weatherford relating to the provision of the MIS Services.
(f) Accounting Services. Weatherford will make its
Accounting Department available to Grant Prideco on a reasonable basis (the
"Accounting Services", and, collectively with the Treasury Services, the
Insurance and Risk Management Services, the Legal Services, the Tax Services
and the MIS Services, the "Services"). Weatherford will allocate to Grant
Prideco a proportional amount of the costs and expenses of Xxxxxxxxxxx'x
Accounting Department to the extent they relate to matters associated with
Grant Prideco and its operations. Grant Prideco agrees to pay Weatherford for
such proportional amount and for all additional costs, fees and expenses
incurred by Weatherford relating to the provision of the Accounting Services.
2.2 EARLY TERMINATION OF SERVICES. With respect to any Service (or
portion thereof) that Grant Prideco no longer requires Xxxxxxxxxxx (or its
Affiliates) to perform, Grant Prideco shall promptly notify Weatherford that
such Service (or portion thereof) is no longer required, and 30 Business Days
following receipt by Weatherford of such notice, such Service (or portion
thereof) will no longer be provided by Xxxxxxxxxxx (or its Affiliates) under
this Agreement and Weatherford will have no further obligation with respect
thereto.
2.3 MANAGEMENT FEE AND REIMBURSEMENT. Weatherford will prepare and
submit to Grant Prideco a monthly statement of account and invoice setting forth
in reasonable detail the amounts owed by Grant Prideco for the Services pursuant
to this Agreement for the immediately preceding month. In consideration for
Xxxxxxxxxxx'x agreement to provide and administer the Services under this
Agreement, Grant Prideco also agrees to pay to Weatherford a management fee
equal to ten percent (10%) of the total amount of the Services. Such management
fee shall be added to each monthly statement of account and invoice sent to
Grant Prideco. Grant Prideco agrees to pay to Weatherford, by wire transfer in
immediately available U.S. funds, all amounts owed and due under this Agreement
within 30 days of receipt of such monthly statement of account and invoice.
Interest at the rate of 10% per annum, compounded monthly, will accrue and will
be payable with respect to any amounts due and not paid by Grant Prideco until
such amounts, and any interest thereon, have been paid.
2.4 ADJUSTMENTS. All costs, expenses and fees associated with the
Services are subject to change and adjustment.
2.5 TERM AND TERMINATION. Subject to the provisions of Section 2.2
hereof, the term of this Agreement shall commence on the Closing Date and shall
continue until, and terminate on, the first anniversary following the Closing
Date. The termination of this Agreement shall not release
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(i) either party from its liability to the other party under this Agreement
arising from a breach of this Agreement, (ii) either party from its rights and
obligations under Article III or (iii) Grant Prideco from its payment
obligations under Sections 2.1 and 2.3.
ARTICLE III
ALLOCATION OF LIABILITY; RELATIONSHIP; DELEGATION OF DUTY
3.1 WAIVER AND INDEMNIFICATION. GRANT PRIDECO HEREBY WAIVES ANY
AND ALL CLAIMS AGAINST WEATHERFORD, ITS AFFILIATES AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (THE "WEATHERFORD PARTIES") FOR
DAMAGES RESULTING FROM PERFORMANCE OF, ERROR OR DELAY IN PERFORMANCE, ATTEMPTING
TO PERFORM OR FAILING TO PERFORM, ANY RESPONSIBILITIES HEREUNDER, OR ANY DAMAGES
OF ANY KIND RELATED THERETO, INCLUDING CLAIMS ARISING AS A RESULT OF THE EXPRESS
NEGLIGENCE OF SUCH PERSONS UNLESS SUCH DAMAGES RESULTED FROM THE WILLFUL
MISCONDUCT OF SUCH PERSONS. FURTHER, GRANT PRIDECO HEREBY AGREES TO DEFEND,
INDEMNIFY AND HOLD THE WEATHERFORD PARTIES HARMLESS FROM AND AGAINST ANY AND ALL
CLAIMS, DAMAGES, CAUSES OF ACTION AND LEGAL LIABILITIES ARISING OUT OF, IN
CONNECTION WITH, OR AS AN INCIDENT TO, THIS AGREEMENT OR ANY ACT OR OMISSION IN
THE PERFORMANCE BY SUCH PERSONS OF THEIR RESPONSIBILITIES HEREUNDER, INCLUDING
DAMAGES, CAUSES OF ACTION AND LEGAL LIABILITIES ARISING AS A RESULT OF THE
NEGLIGENCE OF SUCH PERSONS, UNLESS SUCH DAMAGES RESULTED FROM THE WILLFUL
MISCONDUCT OF SUCH PERSONS SEEKING INDEMNIFICATION.
3.2 LIMITATION ON WARRANTIES AND CONSEQUENTIAL DAMAGES. NONE OF THE
WEATHERFORD PARTIES MAKES ANY WARRANTIES OR REPRESENTATIONS REGARDING SERVICES
PROVIDED PURSUANT TO THIS AGREEMENT OTHER THAN THOSE EXPRESSED IN THIS AGREEMENT
AND NONE OF THE WEATHERFORD PARTIES MAKES ANY EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. SUCH SERVICES ARE
FURNISHED ON AN "AS IS" BASIS, AND NONE OF THE WEATHERFORD PARTIES ASSUMES ANY
RESPONSIBILITY FOR ANY DAMAGE OR LOSS (INCLUDING, WITHOUT LIMITATION, ANY
CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES OR LOST PROFITS) ARISING OUT OF,
RESULTING FROM OR CAUSED BY SERVICES FURNISHED.
3.3 EXPRESS NEGLIGENCE. THE INDEMNITIES SET FORTH IN THIS ARTICLE
III ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH THE
EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING TEXAS' EXPRESS NEGLIGENCE RULE
OR ANY SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES
BECAUSE OF THE SIMPLE OR GROSS NEGLIGENCE (WHETHER SOLE,
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CONCURRENT, ACTIVE OR PASSIVE) OR OTHER FAULT OR STRICT LIABILITY OF ANY OF THE
WEATHERFORD PARTIES.
3.4 INDEPENDENT CONTRACTOR. IN PERFORMING THE SERVICES HEREUNDER,
GRANT PRIDECO AND WEATHERFORD ACKNOWLEDGE AND AGREE THAT THE WEATHERFORD PARTIES
AND THEIR REPRESENTATIVES SHALL BE CONSIDERED INDEPENDENT CONTRACTORS WITH
RESPECT TO GRANT PRIDECO AND SHALL UNDER NO CIRCUMSTANCES BE DEEMED TO BE
EMPLOYEES, AGENTS, PARTNERS OR JOINT VENTURERS OF GRANT PRIDECO. ADDITIONALLY,
WEATHERFORD SHALL HAVE THE AUTHORITY AND RESPONSIBILITY TO SELECT THE MEANS,
MANNER AND METHOD OF PERFORMING THE SERVICES REQUIRED TO BE CAUSED TO BE
PERFORMED BY IT HEREUNDER.
3.5 DELEGATION OF DUTY. In the performance of their respective
obligations under this Agreement, Weatherford and its Affiliates may act
directly or through agents, counsel (in-house or outside) or other persons, may
delegate the performance of functions and may consult with agents, counsel
(in-house or outside) and other persons. None of Weatherford or any of its
Affiliates will be liable for the default or misconduct of any persons employed,
consulted or engaged thereby. Weatherford and its Affiliates will be entitled to
conclusively rely for all purposes upon any notice, document, correspondence,
request or directive received by it from Grant Prideco, or any officer or
director of Grant Prideco, and shall not be obligated to inquire (a) as to the
authority or power of any person executing or presenting any such notice,
document, correspondence, request or directive, or (b) as to the truthfulness of
any statements set forth therein.
ARTICLE IV
MISCELLANEOUS
4.1 AUDIT RIGHT. Upon reasonable prior written request, Grant
Prideco shall have the right to audit Xxxxxxxxxxx'x calculations, and schedules
thereto, of the costs and expenses for the services provided hereunder. Upon
the request of Grant Prideco, Weatherford shall provide Grant Prideco with
copies of invoices relating to any third party costs and expenses relating to
the Services.
4.2 COMPLETE AGREEMENT; AMENDMENT. This Agreement, including the
Annexes and other writings referred to herein or delivered pursuant hereto,
constitutes the entire agreement between Weatherford and Xxxxx Prideco with
respect to the subject matter hereof and supersedes all other agreements,
representations, warranties, statements, promises and understandings, whether
oral or written, with respect to the subject matter hereof. This Agreement may
not be amended, altered or modified except by a writing signed by duly
authorized officers of Weatherford and Grant Prideco.
4.3 NOTICES. All notices under this Agreement must be in writing
and delivered by personal service; certified or registered mail, postage
prepaid, return receipt requested; nationally-recognized overnight courier,
courier charges prepaid; or facsimile transmission (followed
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by telephone confirmation of receipt), to Xxxxxxxxxxx or Xxxxx Prideco, as
applicable, at the addresses herein set forth.
The addresses for notices are as follows:
Xxxxxxxxxxx International, Inc.
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Confirm: (000) 000-0000
Grant Prideco, Inc.
0000 Xxxx Xxxxxxx Xx., Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
Confirm: (000) 000-0000
All notices, demands and requests will be effective upon actual receipt or, in
the case of delivery by facsimile transmission, the completion of such
transmission during the normal business hours of the recipient. Rejection or
other refusal to accept or the inability to deliver because of changed address
of which no notice was given as provided herein will be deemed to be receipt
of the notice, demand or request sent. By giving to the other party at least
10 Business Days' written notice thereof, a party and its respective permitted
successors and permitted assigns will have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
for notices and each will have the right to specify as its address for notices
any other address within the United States of America.
4.4 SEVERABILITY. Any provision hereof that is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such provision in any
other jurisdiction.
4.5 ASSIGNMENT; OTHER BENEFITS. This Agreement will be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns. Neither party to this
Agreement may assign its rights under this Agreement without the prior written
consent of the other party; provided, however, Weatherford may assign any of its
rights and obligations under this Agreement to any Weatherford Affiliate, of
which Weatherford beneficially owns or controls at least 50% of the equity or
other interests of such Affiliate, without the consent of Grant Prideco.
4.6 GOVERNING LAW. This Agreement will be governed by, and
construed in accordance with, the internal laws of the State of Texas, without
reference to or the application of the rules of conflicts of laws set forth in
such laws.
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4.7 WAIVER. No consent or waiver, express or implied, by a party
hereto to or of any breach or default by the other party hereto in the
performance by such other party of its obligations hereunder will be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such other party of the same or any other obligations of such
other party hereunder. Failure on the part of a party to complain of any act or
failure to act of the other party or to declare the other party in default,
irrespective of how long such failure continues, will not constitute a waiver by
such party of its rights hereunder. The giving of consent by a party in any one
instance will not limit or waive the necessity to obtain such party's consent in
any future instance.
4.8 TERMINOLOGY. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, will include all other
genders; and the singular will include the plural and vice versa. The headings
of the Articles and Sections of this Agreement are included for convenience only
and will not be deemed to constitute part of this Agreement or to affect the
construction hereof or thereof.
4.9 FORCE MAJEURE. Except for the obligation of Grant Prideco to
make payments hereunder when due and the indemnification obligations arising
hereunder, neither party shall be liable for delays in performance or for
non-performance, directly occasioned or caused by Force Majeure. Force Majeure
means any event beyond the reasonable control of the party claiming to be
affected thereby, including, without limitation, acts of God, storms, floods,
war, fire, strikes, lockouts or differences with workers, acts of the public
enemy, insurrections, riots or rules or regulations of any Governmental
Authority asserting jurisdiction or control, compliance with which makes
continuance of operations impossible. Inability of either party to secure funds
shall not be regarded as Force Majeure. Upon the occurrence of Force Majeure,
the party affected shall give prompt notice thereof to the other party and
shall, at its cost and expense, do all things reasonable to remove or mitigate
its effect.
4.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will for all purposes be deemed an original, but all
of which together will constitute one and the same agreement.
4.11 FURTHER ASSURANCES. Each party hereto agrees to do all acts
and things and to make, execute and deliver such written instruments, as will
from time to time be reasonably required to carry out the terms and provisions
of this Agreement.
4.12 ARBITRATION. The parties hereto agree that any claim arising
out of or related to this Agreement shall be governed by the dispute resolution,
arbitration and choice of forum provisions set forth in Section 8.3 of the
Distribution Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth in the introduction to this Agreement.
XXXXXXXXXXX INTERNATIONAL, INC.
By:_____________________________________
Xxxxxx X. Xxxx
Senior Vice President,
General Counsel and Secretary
GRANT PRIDECO, INC.
By:_____________________________________
Xxxx X. Xxxxx
President
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ANNEX A
TREASURY SERVICES
Letters of Credit
Weatherford Treasury will continue to maintain certain letters of credit that
are outstanding as of the date of this Agreement, a list of which is attached
hereto. As such letters of credit are required to be renewed, Grant Prideco
shall be required to cause replacement letters of credit to be issued;
provided, however, if the circumstances under which the letters of credit were
initially issued prohibit Weatherford or Xxxxx Prideco from having a
replacement letter of credit issued, Weatherford shall cause such letters of
credit to be renewed at Grant Prideco's sole expense.
Guarantees
There are certain guarantees outstanding as of the date of this Agreement, a
list of which is attached hereto. As such guarantees are required to be
renewed, Grant Prideco shall be required to cause a replacement guarantee to be
issued.
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ANNEX B
INSURANCE AND RISK MANAGEMENT SERVICES
Medical Insurance
Weatherford will continue to administer all medical claims relating to employees
of Grant Prideco that are for periods prior to the Closing Date and that are
covered under Xxxxxxxxxxx'x existing medical insurance program. All losses,
costs, fees and expenses relating to such claims, including the costs of
extending any of such coverage, and Xxxxxxxxxxx'x administration thereof shall
be the sole responsibility of Grant Prideco.
Risk Management
1. Weatherford will continue to administer all claims relating to Grant
Prideco that are for periods prior to the Closing Date and that are covered
under Xxxxxxxxxxx'x existing insurance program. All losses, costs, fees and
expenses relating to such claims and Xxxxxxxxxxx'x administration thereof shall
be the sole responsibility of Grant Prideco.
2. Grant Prideco also will be responsible for any shortfalls under the
current Weatherford insurance allocation method. Under such method, all
Weatherford entities receive an allocation based on their actual exposures and
historical loss experience. The insurance allocation represents the cost of
the actual insurance premiums and an estimate of losses that fall within
Xxxxxxxxxxx'x self-insured retentions and deductibles (Workers Compensation,
Auto Liability, Property and General Liability).
Actual insurance premiums are allocated on a pro-rata basis based on each
unit's percentage of total revenue, payroll, auto counts and property values.
For example, if a particular unit has 10% of all vehicles, the unit will pay
10% of the auto liability premium. Estimated losses for a particular unit are
allocated on a formula basis outlined below:
1. Through a modeling process, losses are estimated for the
insurance year that will fall within Xxxxxxxxxxx'x deductibles and self-insured
retentions.
2. Total Weatherford losses are calculated for the prior
three-year period.
3. Each unit's losses are calculated for the same three-year
period (limited to $_______ per loss).
4. Each unit's losses are calculated as a percentage of the total
three-year loss totals.
5. Each unit's percentage of losses is then applied against the
estimated losses establishing the unit's loss allocation for the coming
insurance year.
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ANNEX C
MANAGEMENT INFORMATION SYSTEMS SERVICES
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