Exhibit 10.2
Execution Version
TRANSITIONAL SERVICES AGREEMENT
This Transitional Services Agreement (
“TSA” ), made as of the 17 th day of
September 2004, (“Effective Date”) is by and
between DYNAMIC MATERIALS CORPORATION, a Delaware corporation (
“Seller” ), and Aerojet-General Corporation (
“Buyer” ).
WITNESSETH
WHEREAS, Seller and Buyer have entered into an Agreement,
dated as of September 17, 2004 (the
“Agreement” ) and certain Ancillary Agreements
related to the Business, and the Business uses certain services
provided by Seller;
WHEREAS, Article 6.4 of the Agreement provides that
Seller and Buyer shall execute and deliver the TSA; and
WHEREAS, Buyer desires to obtain the use of certain
services for the purpose of enabling Buyer to manage an orderly
transition in its operation of the Business.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
DEFINITIONS
1.1
“Transitional
Services” shall
include the services set forth in Schedule 1.1 to be
performed by Seller for Buyer.
Capitalized terms not expressly defined in this
TSA shall have the meanings ascribed to them in the
Agreement.
2.
PROVISION OF
SERVICES
2.1
Subject to Article 7 hereof,
Seller shall provide, or cause to be provided, to Buyer such
Transitional Services as are requested by Buyer for a period of up
to 180 days after the Closing Date (the “Term”
). It is understood by the parties that the quantity of
services to be provided under this Section 2.1 shall be
substantially consistent with Seller’s recent historical
practice. Notwithstanding the foregoing, Seller shall use
reasonable commercial efforts to maintain sufficient resources to
perform Transitional Services in accordance with the terms of this
TSA.
2.2
The parties shall use reasonable
commercial efforts to cooperate with each other in all matters
relating to the provision and receipt of Transitional
Services. Such cooperation shall include exchanging
information, providing electronic access to data systems used in
connection with Transitional Services, and obtaining all consents,
licenses, sublicenses or approvals necessary or desirable to permit
each party to perform its obligations hereunder. The costs of
obtaining such consents, licenses, sublicenses or approvals shall
be borne by Buyer.
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3.
PRICING, BILLING AND
PAYMENT
3.1
All Transitional Services shall be
provided by Seller and paid for by Buyer at Seller’s cost
without profit in accordance with the same allocation formula(s)
and allocation base(s) used by Seller immediately prior to the
Closing Date.
3.2
Charges for Transitional Services
shall be billed monthly by Seller and shall be payable by Buyer on
the 30 th day of the month following the month in which
such services are rendered.
3.3
As needed from time to time during
the period during which Transitional Services are provided, and
upon termination of the provision of any Transitional Service,
Seller will provide Buyer, upon request, with a copy of all records
(in any format, electronic or otherwise) related to the provision
of Transitional Services under this TSA, including, but not limited
to, billing and other Business-related records. Seller may
retain archival copies of such records.
4.
WARRANTY, LIABILITY AND
INDEMNITY
4.1
Seller shall provide Transitional
Services to Buyer in a manner substantially consistent with the
manner they have heretofore been provided to the Business while it
was operated by Seller. Seller makes no other representations
or warranties, express or implied, with respect to the Transition
Services to be provided to Buyer hereunder. Except as
otherwise provided herein, Seller expressly disclaims any
warranties of merchantability, quality, quantity, suitability or
fitness for any particular purpose with respect to the services to
be provided to Buyer hereunder.
4.2
NOTWITHSTANDING ANYTHING CONTAINED
IN THIS TSA TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST REVENUES) OF
THE OTHER PARTY, ITS SUCCESSORS, ASSIGNS OR THEIR RESPECTIVE
AFFILIATES, AS A RESULT OF OR ARISING FROM THIS TSA, REGARDLESS OF
WHETHER SUCH LIABILITY ARISES IN TORT, CONTRACT, BREACH OF
WARRANTY, INDEMNIFICATION OR OTHERWISE.
4.3
Seller’s maximum liability to
Buyer for breach of this TSA or otherwise with respect to
Transitional Services is a refund of the price paid by Buyer for
the particular service
4.4
Each party agrees to indemnify and
hold the other party harmless from any damages, loss, cost or
liability (including legal fees and expenses and the cost of
enforcing this indemnity) arising out of or resulting from a
third-party claim regarding the first party’s performance,
purported performance or nonperformance of this TSA.
5.
FORCE MAJEURE
5.1
Neither party shall be responsible
for failure or delay of any Transitional Service, nor be
responsible for failure or delay in receiving such service, if
caused by an act of God or
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public enemy, war, government acts,
regulations or orders, fire, flood, embargo, quarantine, epidemic,
labor stoppages or other disruptions, accident, unusually severe
weather or other cause similar or dissimilar, beyond the control of
the defaulting party.
6.
PROPRIETARY INFORMATION AND
RIGHTS
6.1
Each party acknowledges that the
other possesses and will continue to possess, information that has
been created, discovered or developed by them and/or in which
property rights have been assigned or otherwise conveyed to them,
which information has commercial value and is not in the public
domain. The proprietary information of each party will be and
remain the sole property of such party and its assigns. Each
party shall use the same degree of care that it normally uses to
protect its own proprietary information to prevent the disclosure
to third parties of proprietary or confidential information of the
other party, regardless of whether the information is designated as
confidential or proprietary. Neither party shall make any use
of the other party’s confidential or proprietary information
except as contemplated or required by the terms of this TSA.
Notwithst
