TRANSITION SUPPORT SERVICES AGREEMENT
THIS AGREEMENT for the performance of certain corporate services is
executed and made effective as of ___________, 2001, by and between RPC, INC., a
Delaware corporation ("RPC"), and MARINE PRODUCTS CORPORATION, a Delaware
corporation ("Marine").
WHEREAS, RPC, through its ownership of all of the issued and outstanding
common stock (the "Stock") of Chaparral Boats, Inc. ("Chaparral"), participates
in the business of manufacturing leisure boats; and
WHEREAS, the Board of Directors of RPC has determined that it would be
advisable and in the best interests of RPC and its shareholders for RPC to
contribute all of the Stock and any other related assets and liabilities
relating to the manufacture of leisure boats (the "Business") to Marine in
exchange for Marine common stock and thereafter to distribute all of the
outstanding shares of Marine common stock on a pro rata basis to the holders of
RPC's common stock (the "Distribution") pursuant to an Agreement Regarding
Distribution and Plan of Reorganization, dated as of the date hereof, between
RPC and Marine (the "Distribution Agreement"); and
WHEREAS, the parties intend that the transactions described herein will be
effective at the Effective Time (as defined in the Distribution Agreement); and
WHEREAS, the parties hereto deem it to be appropriate and in the best
interests of the parties that they provide certain services to each other on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Description of Services.
(a) RPC shall, subject to the terms and provisions of this Agreement,
provide Marine with general services of a financial, technical, commercial,
administrative and/or advisory nature, with respect to the Business, including
without limitation a month-to-month lease of office space on terms to be agreed
upon by RPC and Marine, and render such other specific services as Marine may
from time to time reasonably request in writing, subject to RPC's sole
discretion and its being in a position to supply such services at the time of
such request.
(b) Marine shall, subject to the terms and provisions of this
Agreement, provide RPC with such services as RPC may from time to time
reasonably request in writing, subject to Marine's sole discretion and its being
in a position to supply such services at the time of the request.
Each of RPC and Marine, as the case may be, shall use commercially
reasonable efforts to transition from using the services provided by the other
under this Agreement on or prior to the termination of the original term for the
provision of such services (as provided in Section 7 below).
2. Consideration for Services. Marine shall pay RPC for the services
provided hereunder and RPC shall pay Marine for all the services provided
hereunder at rates agreed to by the parties hereunder.
3. Terms of Payment. Within ten (10) business days after the end of each
month during the term of this Agreement, RPC will submit a written invoice to
Marine and Marine will submit a written invoice to RPC for service fees for the
immediately preceding month together with an accounting of the charges for the
immediately preceding month's services. Within thirty (30) business days after
the receipt of such invoices, RPC and Marine, as the case may be, will remit
payment of the full amount of such invoices to the other in the manner provided
below. Interest shall accrue at the Prime Rate (as defined in the Distribution
Agreement) plus 2% per annum on any amounts not received by the party providing
the service hereunder within thirty (30) days after receipt by the other of the
invoice. The amount of any monthly service fee shall be prorated to correspond
with the portion of a given month for which services were actually rendered.
4. Method of Payment. All amounts payable by Marine and RPC for the
services rendered by the other pursuant to this Agreement shall be remitted to
RPC or Marine, as the case may be, in United States dollars in the form of a
check or wire transfer.
5. WARRANTIES. THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY STATED IN
THIS AGREEMENT, THERE ARE NO WARRANTIES OR GUARANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A
PARTICULAR PURPOSE.
6. Liability; Indemnification; Dispute Resolution.
(a) In no event shall either RPC or Marine have any liability, whether
based on contract, tort (including, without limitation, negligence), warranty or
any other legal or equitable grounds, for any punitive, consequential, special,
indirect or incidental loss or damage suffered by the other arising from or
related to this Agreement, including without limitation, loss of data, profits,
interest or revenue, or interruption of business, even if the party providing
the services hereunder is advised of the possibility of such losses or damages.
(b) The limitations set forth in Section 6(a) above shall not apply to
liabilities which may arise as the result of willful misconduct or gross
negligence of the party providing the services hereunder.
(c) Effective as of the date of this Agreement, Marine shall
indemnify, defend and hold harmless RPC and its affiliates and their respective
directors, officers, employees and agents (the "RPC Indemnitees") from and
against any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys' fees
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and expenses in connection with any and all actions or threatened actions)
("Indemnifiable Losses") incurred or suffered by any of the RPC Indemnitees
arising from, related to or associated with (i) RPC's furnishing or failure to
furnish the services provided for in this Agreement, other than liabilities
arising out of the willful misconduct or gross negligence of the RPC Indemnitees
and (ii) the gross negligence or willful misconduct of Marine in furnishing or
failing to furnish the services to be provided by Marine in this Agreement,
provided however, in no event shall Marine be obligated to indemnify the RPC
Indemnitees (taken together) under this Section 6(c) for Indemnifiable Losses
arising out of Marine's gross negligence in an amount in excess of three times
the service fee charged for the category of service related to the Indemnifiable
Loss in the month in which the act or failure to act by Marine that gave rise to
such Indemnifiable Loss occurs.
(d) Effective as of the date of this Agreement, RPC shall indemnify,
defend and hold harmless Marine and its affiliates and their respective
directors, officers, employees and agents (the "Marine Indemnitees") from and
against any and all Indemnifiable Losses incurred or suffered by any of the
Marine Indemnitees arising from, related to or associated with (i) Marine's
furnishing or failure to furnish the services provided for in this Agreement,
other than liabilities arising out of the willful misconduct or gross negligence
of the Marine Indemnitees, and (ii) the gross negligence or willful misconduct
of RPC in furnishing or failing to furnish the services to be provided by RPC to
Marine in this Agreement, provided however, in no event shall RPC be obligated
to indemnify the Marine Indemnitees (taken together) under this Section 6(d) for
Indemnifiable Losses arising out of RPC's gross negligence in an amount in
excess of three times the service fee charged for the category of service
related to the Indemnifiable Loss in the month in which the act or failure to
act by RPC that gave rise to such Indemnifiable Loss occurs.
(e) Any disputes arising under this Agreement shall be resolved in
accordance with Section 12.10 (Disputes) of the Distribution Agreement.
7. Termination.
(a) Each category of service provided under this Agreement shall
terminate at the request of the party receiving the service.
(b) Notwithstanding Section 7(a) above, either RPC or Marine may, at
its option, upon no less than ninety (90) days prior written notice to the other
(or such other period as the parties may mutually agree in writing), direct the
other to no longer provide a particular category of service.
(c) Notwithstanding Sections 7(a) and 7(b) above, this Agreement may
be terminated in its entirety in accordance with the following:
(i) Upon written agreement of the parties;
(ii) By either Marine or RPC for material breach hereof by the
other if the breach is not cured within thirty (30) calendar days after written
notice of breach is delivered to the breaching party; or
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(iii) By either Marine or RPC, upon written notice to the other
if the other shall become insolvent or shall make an assignment of substantially
all of its assets for the benefit of creditors, or shall be placed in
receivership, reorganization, liquidation or bankruptcy.
(d) Upon any termination pursuant to Sections 7(b) and 7(c) above, RPC
and Marine shall be compensated for all services performed to the date of
termination in accordance with the provisions of this Agreement, and RPC and
Marine, as the case may be, will consider hiring certain employees of the other
identified by the other prior to the termination to the extent that RPC or
Marine, as the case may be, does not contract with third parties to provide the
services rendered by RPC or Marine pursuant to this Agreement.
8. General.
(a) Force Majeure. Any delays in or failure of performance by RPC or
Marine shall not constitute a default hereunder if and to the extent such delay
or failure of performance is caused by occurrences beyond the reasonable control
of RPC or Marine, as the case may be, including, but not limited to: acts of God
or the public enemy; compliance with any order or request of any governmental
authority; acts of war; riots or strikes or other concerted acts of personnel;
or any other causes beyond the reasonable control of RPC or Marine, whether or
not of the same class or kind as those specifically named above.
(b) Confidentiality. Each party shall hold and cause its directors,
officers, employees, agents, consultants and advisors to hold, in strict
confidence, unless compelled to disclose by judicial or administrative process
or, in the opinion of its counsel, by other requirements of law, all information
concerning the other party (except to the extent that such information can be
shown to have been (a) in the public domain through no fault of such disclosing
party or (b) lawfully acquired after the Effective Time (as defined in the
Distribution Agreement) on a non-confidential basis from other sources by the
disclosing party), and neither party shall release or disclose such information
to any other person, except its auditors, attorneys, financial advisors, bankers
and other consultants and advisors who shall be advised of the provisions of
this Section and be bound by them.
(c) Expenses. Except as specifically provided in this Agreement or in
the Distribution Agreement, all costs and expenses incurred prior to the
Effective Time in connection with the preparation, execution, delivery and
implementation of this Agreement and with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all fees for
counsel, accountants and financial and other advisors) shall be paid by RPC and
all such costs incurred thereafter shall be paid by the party incurring such
costs.
(d) Notices. All notices and communications under this Agreement shall
be deemed to have been given (a) when received, if such notice or communication
is delivered by facsimile, hand delivery or overnight courier, and, (b) three
(3) business days after mailing if such notice or communication is sent by
United States registered or certified mail, return receipt requested, first
class postage prepaid. All notices and communications, to be effective, must be
properly addressed to the party to whom the same is directed at its address as
follows:
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If to RPC, to: RPC, Inc.
0000 Xxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
with a copy to: Xxxxxx X. Xxxxx, Esq.
Arnall Golden & Xxxxxxx LLP
2800 One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: 000-000-0000
If to Marine, to: Marine Products Corporation
0000 Xxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxx
Facsimile: 000-000-0000
with a copy to: Xxxxxx X. Xxxxx, Esq.
Arnall Golden & Xxxxxxx LLP
2800 One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Either party may, by written notice delivered to the other party in accordance
with this Section, change the address to which delivery of any notice shall
thereafter be made.
(e) Amendment and Waiver. This Agreement may not be altered or
amended, nor may any rights hereunder be waived, except by an instrument in
writing executed by the party or parties to be charged with such amendment or
waiver. No waiver of any terms, provision or condition of or failure to exercise
or delay in exercising any rights or remedies under this Agreement, in any one
or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, provision, condition, right or remedy or as
a waiver of any other term, provision or condition of this Agreement.
(f) Entire Agreement. This Agreement together with the Distribution
Agreement constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof, superseding all negotiations, prior
discussions and prior agreements and understandings relating to such subject
matter. To the extent that the provisions of this Agreement are inconsistent
with the provisions of any Distribution Agreement, the provisions of this
Agreement shall prevail with respect to the subject matter hereof.
(g) Parties in Interest. Neither of the parties hereto may assign its
rights or delegate any of its duties under this Agreement without the prior
written consent of the other party. This Agreement shall be binding upon, and
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shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. Nothing contained in this Agreement, express
or implied, is intended to confer any benefits, rights or remedies upon any
person or entity other than the RPC Indemnitees and Marine Indemnitees under
Section 6 of this Agreement.
(h) Further Assurances and Consents. In addition to the actions
specifically provided for elsewhere in this Agreement, each of the parties
hereto will use its reasonable efforts to (a) execute and deliver such further
instruments and documents and take such other actions as any other party may
reasonably request in order to effectuate the purposes of this Agreement and to
carry out the terms hereof and (b) take, or cause to be taken, all actions, and
do, or cause to be done, all things, reasonably necessary, proper or advisable
under applicable laws, regulations and agreements or otherwise to consummate and
make effective the transactions contemplated by this Agreement, including,
without limitation, using its reasonable efforts to obtain any consents and
approvals, make any filings and applications and remove any liens, claims,
equity or other encumbrances on any asset of the other party necessary or
desirable in order to consummate the transactions contemplated by this
Agreement; provided that no party hereto shall be obligated to pay any
consideration therefor (except for filing fees and other similar charges) to any
third party from whom such consents, approvals and amendments are requested or
to take any action or omit to take any action if the taking of or the omission
to take such action would be unreasonably burdensome to the party or its
business.
(i) Severability. The provisions of this Agreement are severable and
should any provision hereof be void, voidable or unenforceable under any
applicable law, such provision shall not affect or invalidate any other
provision of this Agreement, which shall continue to govern the relative rights
and duties of the parties as though such void, voidable or unenforceable
provision were not a part hereof.
(j) Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Georgia, without regard to the
conflicts of law rules of such state.
(k) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original instrument, but all of
which together shall constitute but one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
RPC, INC.,
a Delaware corporation
By:
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Name:
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Its:
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MARINE PRODUCTS CORPORATION,
a Delaware corporation
By:
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Name:
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Its:
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