\n SCHEDULES<\/p>\nSchedule 1.01 Contributed Subsidiaries
\nSchedule 1.02 EnPro Litigation
\nSchedule 1.03 Goodrich Litigation
\nSchedule 5.04(a) Defense Procedure Exceptions
\nSchedule 8.13 Expense Exceptions<\/p>\n
ANNEXES<\/p>\n
Annex A Coltec\/GPEC Plan of Reorganization
\nAnnex B Goodrich\/EnPro Plan of Reorganization
\nAnnex C Contribution and Assumption of Liabilities Agreement (Coltec\/DS, LLC)
\nAnnex D Contribution and Assumption of Liabilities Agreement (Coltec\/GLG, LLC)
\nAnnex E Contribution and Assumption of Liabilities Agreement (Coltec\/GPEC)
\nAnnex F Employee Matters Agreement
\nAnnex G Escrow Agreement
\nAnnex H Tax Matters Arrangements
\nAnnex I TIDES Indemnification Agreement
\nAnnex J Transition Services Agreement
\n<\/c><\/s><\/table>\n
iii<\/p>\n
DISTRIBUTION AGREEMENT<\/p>\n
Distribution Agreement, dated as of May 31, 2002 (this “AGREEMENT”), by
\nand among Goodrich Corporation, a New York corporation (“GOODRICH”), EnPro
\nIndustries, Inc., a North Carolina corporation (“ENPRO”) and Coltec Industries
\nInc, a Pennsylvania corporation (“COLTEC”).<\/p>\n
RECITALS<\/p>\n
A. Coltec and GPEC have entered into an Agreement and Plan of
\nCorporate Separation and Reorganization dated as of May 16, 2002 (the
\n“COLTEC\/GPEC PLAN OF REORGANIZATION”) and attached hereto as Annex A.<\/p>\n
B. Goodrich and EnPro have entered into an Agreement and Plan of
\nCorporate Separation and Reorganization dated as of May 20, 2002 (the
\n“GOODRICH\/ENPRO PLAN OF REORGANIZATION”) and attached hereto as Annex B.<\/p>\n
C. The Board of Directors of Coltec, pursuant to the Coltec\/GPEC
\nPlan of Reorganization and after consultation with Coltec’s management and
\nfinancial and legal advisors, has determined that it is appropriate and in the
\nbest interests of Coltec and its sole shareholder to separate its aerospace
\nsegment from its engineered industrial products segment by effecting a (i)
\ncontribution of Coltec Aerospace to GPEC and its Subsidiaries (the “AEROSPACE
\nRESTRUCTURING”) and (ii) dividend of all of the GPEC Common Stock to Goodrich
\n(the “AEROSPACE DISTRIBUTION”) pursuant to the terms and subject to the
\nconditions of this Agreement and the Aerospace Contribution Agreements.<\/p>\n
D. After the Aerospace Distribution Date and prior to the
\nDistribution Time, Goodrich will contribute to EnPro (i) Coltec and its direct
\nand indirect Subsidiaries, excluding Coltec Aerospace and (ii) a promissory note
\nin the original aggregate principal amount of $201.9 million from Coltec to
\nGoodrich in exchange for EnPro Common Stock in an amount equal to the difference
\nof (x) the number of shares of EnPro Common Stock equal to one fifth of the
\nnumber of shares of Goodrich Common Stock outstanding on the Record Date,
\nincluding any fraction of a share of EnPro Common Stock, minus (y) 1,000 shares
\nof EnPro Common Stock (the “ENPRO CONTRIBUTION”) pursuant to the terms and
\nsubject to the conditions of this Agreement and the EnPro Contribution
\nAgreement.<\/p>\n
E. The Board of Directors of Goodrich, pursuant to the
\nGoodrich\/EnPro Plan of Reorganization and after consultation with Goodrich’s
\nmanagement and financial and legal advisors, has determined that it is
\nappropriate and in the best interests of Goodrich and the Goodrich Shareholders
\nto divest Goodrich’s indirect ownership interest in the EnPro Business, through
\na pro rata distribution of all of the EnPro Common Stock to the Goodrich
\nShareholders (the “DISTRIBUTION”) pursuant to the terms and subject to the
\nconditions of this Agreement and the Ancillary Agreements.<\/p>\n
F. The Aerospace Distribution and the Distribution are intended
\nto qualify as tax-free transactions (except as to payment of cash in lieu of
\nfractional shares) to Coltec,<\/p>\n
Goodrich and their respective shareholders, as applicable, under Sections 361
\nand 355 of the Code.<\/p>\n
G. Goodrich, EnPro, Coltec and certain other of their respective
\nSubsidiaries have entered into, or will enter into by the Distribution Date, the
\nTransfer Documents, and have agreed to complete the transactions, and take or
\ncause to be taken the other actions, contemplated by the Transfer Documents in
\norder to complete the Aerospace Restructuring, the Aerospace Distribution, and
\nthe EnPro Contribution.<\/p>\n
H. Goodrich, EnPro and Coltec desire to set forth herein the
\nmatters relating to the relationship and the respective rights and obligations
\nof the parties to one another following the Aerospace Distribution and the
\nDistribution.<\/p>\n
AGREEMENT<\/p>\n
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
\nand undertakings contained in this Agreement, and other good and valuable
\nconsideration, the receipt and sufficiency of which are hereby acknowledged,
\nGoodrich, EnPro and Coltec hereby agree as follows:<\/p>\n
ARTICLE 1<\/p>\n
DEFINITIONS<\/p>\n
Section 1.01 Definitions. The following terms, as used herein,
\nhave the following meanings:<\/p>\n
“Action” means any claim, suit, action, demand, order,
\narbitration, inquiry, investigation or other proceeding of any nature (whether
\ncriminal, civil, legislative, administrative, regulatory, prosecutorial or
\notherwise) asserted or brought by or before any arbitrator, mediator or
\nGovernmental Entity or similar Person or body.<\/p>\n
“Aerospace Contribution Agreements” means the (i) Contribution
\nand Assumption of Liabilities Agreement by and between Coltec and Delavan Spray,
\nLLC, dated as of May 22, 2002, (ii) the Contribution and Assumption of
\nLiabilities Agreement by and between Coltec and Goodrich Landing Gear, LLC,
\ndated as of May 22, 2002, and (iii) the Contribution and Assumption of
\nLiabilities Agreement by and between Coltec and GPEC, dated as of May 23, 2002,
\neach attached hereto as Annex C, Annex D and Annex E, respectively, that will
\ntransfer Coltec Aerospace to GPEC and its Subsidiaries prior to the Aerospace
\nDistribution Date.<\/p>\n
“Aerospace Distribution” has the meaning set forth in the
\nrecitals.<\/p>\n
“Aerospace Distribution Date” means May 29, 2002.<\/p>\n
“Aerospace Restructuring” has the meaning set forth in the
\nrecitals.<\/p>\n
“Affiliate” has the meaning ascribed to such term in
\nRule 12b-2 of the Exchange Act as of the date hereof; provided, however, that
\nGoodrich and EnPro (in each case with the<\/p>\n
2<\/p>\n
members of their respective Groups) shall not be deemed to be Affiliates of each
\nother for purposes of this Agreement.<\/p>\n
“Agreement” has the meaning set forth in the preamble.<\/p>\n
“Ancillary Agreements” means all agreements, certificates,
\ndeeds, instruments, assignments and other written arrangements (other than this
\nAgreement and the Transfer Documents) entered into between Goodrich and one or
\nmore members of the EnPro Group in connection with the Distribution, including
\nthe Employee Matters Agreement, the Tax Matters Arrangements, the TIDES
\nIndemnification Agreement and the Transition Services Agreement.<\/p>\n
“AP Excess” has the meaning set forth in Section 4.01(d)(iii).<\/p>\n
“AP Option” has the meaning set forth in Section 4.01(d)(iii).<\/p>\n
“Asbestos Payments” has the meaning set forth in Section
\n4.01(d)(i).<\/p>\n
“Asbestos Payments Statement” has the meaning set forth in
\nSection 4.01(d)(i).<\/p>\n
“Business Day” means any day other than a Saturday, Sunday or
\none on which banks are authorized or required by law to close in Charlotte,
\nNorth Carolina.<\/p>\n
“Cash” has the meaning set forth in Section 4.01(a)(i).<\/p>\n
“Cash Statement” has the meaning set forth in Section
\n4.01(a)(i).<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended,
\nand the regulations promulgated thereunder, including any successor language.<\/p>\n
“Coltec” has the meaning set forth in the preamble.<\/p>\n
“Coltec Aerospace” means the aerospace assets and Liabilities
\nof Coltec and its Subsidiaries to be transferred pursuant to the Aerospace
\nContribution Agreements.<\/p>\n
“Coltec\/GPEC Plan of Reorganization” has the meaning set
\nforth in the recitals.<\/p>\n
“Coltec Insurance Block” has the meaning set forth in
\nSection 5.03(e).<\/p>\n
“Coltec’s Prior Accounting Practices and Policies” means
\naccounting practices and policies consistent with those applied in the
\npreparation of the December 31, 2001 consolidated balance sheet of Coltec and
\nits subsidiaries and the consolidated statement of income for the fiscal year
\nthen ended, as contained in the Form 10.<\/p>\n
“Commission” means the Securities and Exchange Commission.<\/p>\n
“Contributed Subsidiaries” means all entities listed on
\nSchedule 1.01, which include (i) the direct or indirect Subsidiaries of EnPro,
\n(ii) those other entities in which, as of the Distribution Date, EnPro or any
\ndirect or indirect Subsidiary of EnPro owns a minority interest and (iii) all
\npredecessors to those entities referenced in (i) and (ii) above.<\/p>\n
3<\/p>\n
“Corporate Records” has the meaning set forth in Section 3.01.<\/p>\n
“Damages” means, with respect to any Person, any and all
\ndamages (including punitive and consequential damages if not otherwise expressly
\nexcluded), losses, Liabilities, fines, costs and expenses incurred or suffered
\nby such Person (including all expenses of investigation, all reasonable
\nattorneys’ and expert witnesses’ fees and all other costs, charges and
\nout-of-pocket expenses incurred in connection with any Action or threatened
\nAction).<\/p>\n
“Distribution” has the meaning set forth in the recitals.<\/p>\n
“Distribution Agent” means The Bank of New York.<\/p>\n
“Distribution Date” means May 31, 2002.<\/p>\n
“Distribution Time” means 11:59 p.m., Charlotte, North
\nCarolina time, on the Distribution Date.<\/p>\n
“EIP Businesses” has the meaning set forth in Section
\n4.01(b)(i).<\/p>\n
“Employee Matters Agreement” means the Employee Matters
\nAgreement entered into on the Distribution Date between Goodrich and EnPro,
\nattached hereto as Annex F.<\/p>\n
“EnPro” has the meaning set forth in the preamble.<\/p>\n
“EnPro Business” means the businesses conducted by the EnPro
\nGroup at any time prior to or on the Distribution Date, including businesses
\nthat have been discontinued, sold, transferred or otherwise disposed of by a
\nmember of the EnPro Group, but in each case excluding the Goodrich Business and
\nColtec Aerospace.<\/p>\n
“EnPro Common Stock” means the common stock, par value $0.01
\nper share, of EnPro.<\/p>\n
“EnPro Contribution” has the meaning set forth in the
\nrecitals.<\/p>\n
“EnPro Contribution Agreement” means the Contribution and
\nAssumption of Liabilities Agreement, dated as of May 31, 2002 and effective as
\nof 10:59 p.m. on the Distribution Date, by and between EnPro and Goodrich.<\/p>\n
“EnPro Group” means EnPro and the Contributed Subsidiaries,
\nincluding all successors to each of those Persons.<\/p>\n
“EnPro Group Liabilities” means the following and only the
\nfollowing obligations and Liabilities of any and all members of the EnPro Group:<\/p>\n
– Liabilities of, associated with, arising from or
\n relating primarily to the ownership, use, possession,
\n operation or conduct of the EnPro Business or the
\n assets, business or operations of the EnPro Group
\n prior to, on or after the Distribution Date;<\/p>\n
4<\/p>\n
– all other Liabilities of the EnPro Group under this
\n Agreement, any Transfer Document or any Ancillary
\n Agreement, including the EnPro Litigation;<\/p>\n
– all Liabilities that would be reflected as
\n liabilities or obligations on a consolidated balance
\n sheet or reflected as contingencies with respect to
\n such a consolidated balance sheet relating to the
\n EnPro Business after giving effect to the Aerospace
\n Distribution and the Distribution;<\/p>\n
– all Liabilities associated with the information in
\n the Information Statement and the Form 10 provided by
\n EnPro pursuant to the Side Letter; and<\/p>\n
– all Liabilities arising from or out of a breach by
\n any member of the EnPro Group of its obligations
\n under this Agreement, any Ancillary Agreement or any
\n Transfer Document.<\/p>\n
but does not include (x) Liabilities for Taxes (which will be governed by the
\nTax Matters Arrangements), (y) Liabilities specifically addressed in the
\nEmployee Matters Agreement and the TIDES Indemnification Agreement and (z) any
\nand all Goodrich Group Liabilities.<\/p>\n
“EnPro Indemnifiable Liabilities” has the meaning set forth in
\nSection 5.01.<\/p>\n
“EnPro Indemnitees” has the meaning set forth in Section 5.02.<\/p>\n
“EnPro Litigation” means the litigation identified as such on
\nSchedule 1.02 and any additional Actions brought in connection therewith.<\/p>\n
“EnPro Released Parties” has the meaning set forth in
\nSection 6.01(b).<\/p>\n
“Escrow Agent” means The Bank of New York.<\/p>\n
“Escrow Agreement” means the Escrow Agreement entered into on
\nthe Distribution Date among Coltec, GPEC and the Escrow Agent, attached hereto
\nas Annex G.<\/p>\n
“Escrow Property” has the meaning set forth in Section
\n4.01(g)(i).<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as
\namended, and the rules and regulations promulgated thereunder.<\/p>\n
“Excess” has the meaning set forth in Section 4.01(b)(iii).<\/p>\n
“Finally Determined” means, with respect to any Action,
\nthreatened Action or other matter, that the outcome or resolution of that
\nAction, threatened Action or other matter either (i) has been decided through
\nbinding arbitration or by a Governmental Entity of competent jurisdiction by
\njudgment, order, award, or other ruling or (ii) has been settled or voluntarily
\ndismissed by the parties pursuant to the dispute resolution procedure set forth
\nin Article 7 or otherwise and, in the case of each of clauses (i) and (ii), the
\nclaimants’ rights to maintain that Action, threatened Action or other matter
\nhave been finally adjudicated, waived, released, discharged, barred or
\nextinguished, and that judgment, order, ruling, award, settlement or dismissal
\n(whether mandatory or voluntary, but if voluntary that dismissal must be final,
\nbinding<\/p>\n
5<\/p>\n
and with prejudice as to all claims specifically pleaded in that Action,
\nthreatened Action or other matter) is subject to no further appeal, vacatur
\nproceeding or discretionary review.<\/p>\n
“Form 10” means the registration statement on Form 10 filed by
\nEnPro with the Commission to effect the registration of the EnPro Common Stock
\npursuant to the Exchange Act in connection with the Distribution, as such
\nregistration statement may be amended or supplemented from time to time.<\/p>\n
“Goodrich” has the meaning set forth in the preamble.<\/p>\n
“Goodrich Business” means the businesses conducted by the
\nGoodrich Group at any time prior to or on the Distribution Date, including
\nbusinesses that have been discontinued, sold, transferred or otherwise disposed
\nof by a member of the Goodrich Group, but in each case excluding the EnPro
\nBusiness.<\/p>\n
“Goodrich Common Stock” means the common stock, par value
\n$5.00 per share, of Goodrich.<\/p>\n
“Goodrich\/EnPro Plan of Reorganization” has the meaning set
\nforth in the recitals.<\/p>\n
“Goodrich Group” means Goodrich and its direct and indirect
\nSubsidiaries, including all successors to each of those Persons, other than the
\nEnPro Group.<\/p>\n
“Goodrich Group Liabilities” means the following and only the
\nfollowing obligations and Liabilities of any and all members of the Goodrich
\nGroup:<\/p>\n
– Liabilities of, associated with, arising from or
\n relating primarily to the ownership, use, possession,
\n operation or conduct of the Goodrich Business or the
\n assets, business or operations of the Goodrich Group
\n prior to, on or after the Distribution Date;<\/p>\n
– all other Liabilities of Goodrich under this
\n Agreement, any Transfer Document or any Ancillary
\n Agreement, including the Goodrich Litigation;<\/p>\n
– all Liabilities that would be reflected as
\n liabilities or obligations on a consolidated balance
\n sheet or reflected as contingencies with respect to
\n such a consolidated balance sheet relating to the
\n Goodrich Business after giving effect to the
\n Aerospace Distribution and the Distribution;<\/p>\n
– all Liabilities associated with the information in
\n the Information Statement and the Form 10 provided by
\n Goodrich pursuant to the Side Letter; and<\/p>\n
– all Liabilities arising from or out of a breach by
\n any member of the Goodrich Group of its obligations
\n under this Agreement, any Ancillary Agreement or any
\n Transfer Document.<\/p>\n
6<\/p>\n
but does not include (x) Liabilities for Taxes (which are governed by the Tax
\nMatters Arrangements), (y) Liabilities specifically addressed in the Employee
\nMatters Agreement and the TIDES Indemnification Agreement and (z) any and all
\nEnPro Group Liabilities.<\/p>\n
“Goodrich Indemnifiable Liabilities” has the meaning set forth
\nin Section 5.02.<\/p>\n
“Goodrich Indemnitees” has the meaning set forth in
\nSection 5.01.<\/p>\n
“Goodrich Litigation” means the litigation identified as such
\non Schedule 1.03 and any additional Actions brought in connection therewith.<\/p>\n
“Goodrich Released Parties” has the meaning set forth in
\nSection 6.01(a).<\/p>\n
“Goodrich Shareholders” means the holders of Goodrich Common
\nStock of record as of the Record Date.<\/p>\n
“Governmental Entity” means any federal, state, local or
\nforeign government or any court, tribunal, administrative agency or commission
\nor other governmental or regulatory authority or agency, domestic, foreign or
\nsupranational.<\/p>\n
“GPEC” means Goodrich Pump and Engine Control Systems, Inc., a
\nDelaware corporation.<\/p>\n
“GPEC Common Stock” means the common stock, par value $1.00
\nper share, of GPEC.<\/p>\n
“Group” means, as the context requires, the EnPro Group or the
\nGoodrich Group.<\/p>\n
“Indemnified Party” has the meaning set forth in Section
\n5.03(a).<\/p>\n
“Indemnifying Party” has the meaning set forth in Section
\n5.03(a).<\/p>\n
“Information Statement” has the meaning set forth in Section
\n2.01(a).<\/p>\n
“Law” means any applicable federal, state, local or foreign
\nlaw, statute, ordinance, directive, rule, regulation, judgment, order,
\ninjunction, decree, arbitration award, agency requirement, license or permit of
\nany Governmental Entity.<\/p>\n
“Liability” or “Liabilities” means any and all losses, claims,
\ncharges, debts, demands, actions, causes of action, suits, damages, obligations,
\npayments, costs and expenses, sums of money, accounts, bonds, indemnities and
\nsimilar obligations, exoneration, covenants, contracts, controversies,
\nagreements, promises, doings, omissions, guarantees, make whole agreements and
\nsimilar obligations, and other liabilities and requirements, including all
\ncontractual obligations, whether absolute or contingent, matured or unmatured,
\nliquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
\narising, and including those arising under any law, rule, regulation, Action,
\nthreatened or contemplated Action (including the costs and expenses of demands,
\nassessments, judgments, settlements and compromises relating thereto and
\nattorneys’ fees and any and all costs and expenses whatsoever reasonably
\nincurred in investigating, preparing or defending against any such Actions or
\nthreatened or contemplated<\/p>\n
7<\/p>\n
Actions), order or consent decree of any Governmental Entity or any award of any
\narbitrator or mediator of any kind, and those arising under any contract,
\ncommitment or undertaking, including those arising under this Agreement, any
\nTransfer Document or any Ancillary Agreement, in each case, whether or not
\nrecorded or reflected or required to be recorded or reflected on the books and
\nrecords or financial statements of any Person.<\/p>\n
“Net Other Liabilities\/Assets” has the meaning set forth in
\nSection 4.01(c)(i).<\/p>\n
“Net Other Liabilities\/Assets Statement” has the meaning set
\nforth in Section 4.01(c)(i).<\/p>\n
“Net Receivables” has the meaning set forth in Section
\n4.01(b)(i).<\/p>\n
“Net Trade Receivables\/Payables Statement” has the meaning set
\nforth in Section 4.01(b)(i).<\/p>\n
“NTR\/P Option” has the meaning set forth in Section
\n4.01(b)(iii).<\/p>\n
“NYSE” means The New York Stock Exchange.<\/p>\n
“OL\/A Option” has the meaning set forth in Section
\n4.01(c)(iii).<\/p>\n
“Opening Adjustment” means the sum of (a) $3,045,000
\n(representing the May 2002 Fairbanks Morse engine purchase) and (b) $1,575,000
\n(representing the bank fees paid in May 2002).<\/p>\n
“Opening Cash Target” means $50,000,000, reduced by the amount
\nof the Opening Adjustment.<\/p>\n
“Person” means any individual, corporation (including
\nnot-for-profit corporations), general or limited partnership, limited liability
\ncompany, joint venture, estate, trust, association, organization, Governmental
\nEntity or other entity of any kind or nature, unless another definition is
\nspecifically provided for herein, in which instance such other definition shall
\ncontrol only in the context in which it is used.<\/p>\n
“Record Date” means May 28, 2002, which is the date used for
\ndetermining the Goodrich Shareholders entitled to receive the EnPro Common Stock
\nto be issued in the Distribution.<\/p>\n
“Shortfall” has the meaning set forth in Section 4.01(c)(iii).<\/p>\n
“Side Letter” has the meaning set forth in Section 5.05(b).<\/p>\n
“Statements” has the meaning set forth in Section 4.01(e)(i).<\/p>\n
“Subsidiary” of any Person means any corporation or other
\norganization whether incorporated or unincorporated of which at least a majority
\nof the securities or interests having by the terms thereof ordinary voting power
\nto elect at least a majority of the board of directors or others performing
\nsimilar functions with respect to such corporation or other organization is<\/p>\n
8<\/p>\n
directly or indirectly owned or controlled by such Person or by any one or more
\nof its Subsidiaries, or by such Person and one or more of its Subsidiaries;
\nprovided, however, that no Person that is not directly or indirectly wholly
\nowned by any other Person shall be a Subsidiary of such other Person unless such
\nother Person controls, or has the right, power and ability to control, that
\nPerson.<\/p>\n
“Taxes” has the meaning set forth in the Tax Matters
\nArrangements.<\/p>\n
“Tax Matters Arrangements” means the Tax Matters Arrangements
\nentered into on the Distribution Date between Goodrich and EnPro, attached
\nhereto as Annex H.<\/p>\n
“TIDES” means the $150 million liquidation value of 5 1\/4%
\nConvertible Preferred Securities – Term Income Deferred Equity Securities issued
\nby Coltec Capital Trust.<\/p>\n
“TIDES Indemnification Agreement” means the TIDES
\nIndemnification Agreement entered into on the Distribution Date among EnPro,
\nGoodrich, Coltec and Coltec Capital Trust, attached hereto as Annex I.<\/p>\n
“Transfer” means assign, contribute, convey, transfer and
\ndeliver.<\/p>\n
“Transfer Documents” means all agreements, certificates,
\ndeeds, instruments, assignments and other written arrangements, including the
\nAerospace Contribution Agreements, the EnPro Contribution Agreement, the
\nColtec\/GPEC Plan of Reorganization and the Goodrich\/EnPro Plan of
\nReorganization, relating to the corporate restructuring that, among other
\nthings, will (i) transfer Coltec Aerospace from Coltec to Goodrich through a
\nseries of transactions that will culminate in the Aerospace Distribution on the
\nAerospace Distribution Date and (ii) effect the EnPro Contribution.<\/p>\n
“Transition Services Agreement” means the Transition Services
\nAgreement entered into on the Distribution Date between Goodrich and EnPro,
\nattached hereto as Annex J.<\/p>\n
ARTICLE 2<\/p>\n
CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTION; THE DISTRIBUTION<\/p>\n
Section 2.01 Cooperation Prior to the Distribution. Prior to the
\nDistribution Date:<\/p>\n
(a) Goodrich, EnPro and Coltec shall prepare, and EnPro
\nshall file with the Commission, the Form 10, which shall include an information
\nstatement (the “INFORMATION STATEMENT”) that will describe the Distribution and
\nEnPro and will substantially comply with Regulation 14C under the Exchange Act.
\nGoodrich and EnPro shall use their reasonable efforts to cause the Form 10 to
\nbecome effective under the Exchange Act as promptly as reasonably practicable.
\nAs promptly as reasonably practicable after the Form 10 has become effective,
\nGoodrich shall mail the Information Statement to the Goodrich Shareholders.<\/p>\n
(b) Goodrich and EnPro shall cooperate in preparing,
\nfiling with the Commission and causing to become effective any registration
\nstatements or amendments thereto<\/p>\n
9<\/p>\n
that are necessary, advisable or appropriate to reflect the establishment of,
\nor amendments to, any employee benefit or other plans of Goodrich or EnPro
\ncontemplated by any Ancillary Agreement or otherwise necessary, advisable or
\nappropriate in connection with the Distribution.<\/p>\n
(c) Goodrich and EnPro shall take all such action as may
\nbe necessary, advisable or appropriate under the securities or blue sky laws of
\nstates or other political subdivisions of the United States in connection with
\nthe transactions contemplated by this Agreement, the Transfer Documents and the
\nAncillary Agreements.<\/p>\n
(d) Goodrich and EnPro shall prepare, and EnPro shall
\nfile and seek to make effective, an original listing application to permit the
\nlisting of the EnPro Common Stock on the NYSE.<\/p>\n
(e) Coltec shall use its reasonable efforts, both prior
\nto and after the Aerospace Distribution Date, to duly and validly Transfer all
\ntransferable licenses, permits and authorizations issued by any Governmental
\nEntity that relate to Coltec Aerospace but that are held in the name of Coltec
\nor any other member of the EnPro Group or any of their respective employees,
\nofficers, directors, shareholders, agents or otherwise, on behalf of Coltec or
\nany other member of the EnPro Group, to GPEC (or another member of the Goodrich
\nGroup designated by Goodrich). In the event any such Transfer cannot be effected
\nprior to the Aerospace Distribution Date, Coltec shall, to the extent permitted
\nby Law, allow GPEC, or the relevant member of the Goodrich Group, to operate
\nunder such licenses, permits or authorizations until such Transfer can be
\neffected.<\/p>\n
(f) Goodrich shall use its reasonable efforts, both prior
\nto and after the Distribution Date, to duly and validly Transfer all
\ntransferable licenses, permits and authorizations issued by any Governmental
\nEntity that relate to the EnPro Business but that are held in the name of
\nGoodrich or any other member of the Goodrich Group or any of their respective
\nemployees, officers, directors, shareholders, agents or otherwise, on behalf of
\nGoodrich or any other member of the Goodrich Group, to EnPro (or another member
\nof the EnPro Group designated by EnPro). In the event any such Transfer cannot
\nbe effected prior to the Distribution Date, Goodrich shall, to the extent
\npermitted by Law, allow EnPro, or the relevant member of the EnPro Group, to
\noperate under such licenses, permits or authorizations until such Transfer can
\nbe effected.<\/p>\n
(g) Goodrich and EnPro shall cooperate prior to, on and
\nafter the Distribution Date to identify any product licenses or technology
\nlicenses that are (i) in the name of one or more members of one Group but used
\nsolely by the other Group and (ii) in the name of one or more members of one
\nGroup but used jointly with the other Group. With respect to the licenses
\ndescribed in (i) above, the Group holding such license shall Transfer such
\nlicense to the other Group as soon as reasonably practicable and shall grant
\naccess, subcontract or provide such other benefits as may be necessary so that
\nthe other Group may continue to use the relevant products or technology after
\nthe Distribution Date until such Transfer can be effected. With respect to the
\nlicenses described in (ii) above, the Group holding such license shall, as soon
\nas reasonably practicable, negotiate and enter into a commercially based fair
\nmarket value license agreement with the other Group and shall grant access,
\nsubcontract or provide such other benefits as may be necessary so that the other
\nGroup may continue to use the relevant products or technology after the
\nDistribution Date until such agreement becomes effective. In either case, the
\nGroup using<\/p>\n
10<\/p>\n
the products or technology will bear any expenses incurred as a result of the
\nuse of the products or technology, including expenses incurred in connection
\nwith the granting of access, subcontracting or provision of other benefits under
\nthis Section 2.01(g).<\/p>\n
Section 2.02 Board Actions.<\/p>\n
(a) Coltec’s Board of Directors shall establish, or
\ndelegate authority to establish, (i) the Aerospace Distribution Date, which
\nshall be the record date for the Aerospace Distribution and (ii) any appropriate
\nprocedures in connection with the Aerospace Distribution.<\/p>\n
(b) Goodrich’s Board of Directors shall establish, or
\ndelegate authority to establish, (i) the Record Date and the Distribution Date
\nand (ii) any appropriate procedures in connection with the EnPro Contribution
\nand the Distribution.<\/p>\n
(c) EnPro’s Board of Directors shall approve the EnPro
\nContribution.<\/p>\n
Section 2.03 Conditions Precedent.<\/p>\n
(a) The obligation of Coltec to consummate the Aerospace
\nDistribution is subject to the following conditions, any of which may be waived
\nby Coltec in its sole and absolute discretion, except to the extent the
\nsatisfaction of such condition is required by Law in connection with the
\nAerospace Distribution:<\/p>\n
(i) all material regulatory approvals necessary
\n to consummate the Aerospace Distribution shall have been received and
\n shall be in full force and effect;<\/p>\n
(ii) no order, preliminary or permanent
\n injunction or decree issued by any court or agency of competent
\n jurisdiction or other legal restraint or prohibition preventing
\n consummation of the Aerospace Distribution shall be in effect and no
\n other event shall have occurred or failed to occur that prevents
\n consummation of the Aerospace Distribution;<\/p>\n
(iii) the Coltec Board of Directors shall have
\n approved the Aerospace Distribution;<\/p>\n
(iv) Coltec shall have received an opinion of tax
\n counsel to the effect that the Aerospace Distribution will be tax-free
\n to Coltec and its sole shareholder for federal income tax purposes, in
\n form and substance satisfactory to Coltec in its sole discretion; and<\/p>\n
(v) each Transfer Document and the TIDES
\n Indemnification Agreement shall have been duly executed and delivered
\n by the parties thereto.<\/p>\n
(b) The obligation of Goodrich to consummate the
\nDistribution is subject to the following conditions, any of which may be waived
\nby Goodrich in its sole and absolute discretion, except to the extent the
\nsatisfaction of such condition is required by Law in connection with the
\nDistribution:<\/p>\n
11<\/p>\n
(i) the Form 10 shall have become effective
\n under the Exchange Act, and there shall be no stop order in effect with
\n respect thereto, and the Information Statement shall have been mailed
\n to all Goodrich Shareholders;<\/p>\n
(ii) the EnPro Common Stock to be delivered in
\n the Distribution shall have been approved for listing on the NYSE,
\n subject to official notice of issuance;<\/p>\n
(iii) all material regulatory approvals necessary
\n to consummate the Distribution shall have been received and shall be in
\n full force and effect;<\/p>\n
(iv) no order, preliminary or permanent
\n injunction or decree issued by any court or agency of competent
\n jurisdiction or other legal restraint or prohibition preventing
\n consummation of the Distribution shall be in effect and no other event
\n shall have occurred or failed to occur that prevents consummation of
\n the Distribution;<\/p>\n
(v) the Goodrich Board of Directors shall have
\n approved the Distribution and shall have deemed there to be no other
\n events or developments that shall have occurred that would result in
\n the Distribution having an adverse effect on Goodrich or Goodrich’s
\n Shareholders;<\/p>\n
(vi) Goodrich shall have received an opinion of
\n tax counsel to the effect that the Distribution will be tax-free to
\n Goodrich and Goodrich Shareholders (except with respect to cash
\n received in lieu of fractional shares) for federal income tax purposes,
\n in form and substance satisfactory to Goodrich in its sole discretion;<\/p>\n
(vii) each Ancillary Agreement shall have been
\n duly executed and delivered by the parties thereto;<\/p>\n
(viii) Coltec Aerospace shall have been transferred
\n by Coltec to Goodrich on the Aerospace Distribution Date, pursuant to
\n the Transfer Documents;<\/p>\n
(ix) the EnPro Contribution shall have been
\n consummated; and<\/p>\n
(x) the Escrow Agreement shall have been duly
\n executed and delivered by the parties thereto.<\/p>\n
Section 2.04 The Aerospace Distribution.<\/p>\n
(a) Subject to the terms and conditions of this Agreement
\nand applicable Law, on the Aerospace Distribution Date Goodrich shall be
\nentitled to receive in the Aerospace Distribution all of the outstanding shares
\nof GPEC Common Stock.<\/p>\n
(b) On the Aerospace Distribution Date, Coltec will
\ndeliver one or more stock certificates representing all of the outstanding
\nshares of GPEC owned by Coltec and duly executed stock powers evidencing the
\ntransfer of ownership from Coltec to Goodrich of all of the outstanding GPEC
\nCommon Stock. All such shares of GPEC Common Stock shall be fully paid,
\nnonassessable and free of preemptive rights.<\/p>\n
12<\/p>\n
Section 2.05 The EnPro Contribution. After the Aerospace
\nDistribution Date and before the Distribution Date, Goodrich and EnPro shall
\neffect the EnPro Contribution pursuant to the EnPro Contribution Agreement.<\/p>\n
Section 2.06 The Distribution.<\/p>\n
(a) Subject to the terms and conditions of this Agreement
\nand applicable Law, each holder of Goodrich Common Stock on the Record Date,
\nother than Goodrich, (or such holder’s designated transferee or transferees)
\nwill be entitled to receive in the Distribution one share of EnPro Common Stock
\nfor every five shares of Goodrich Common Stock held by that shareholder on the
\nRecord Date.<\/p>\n
(b) On the Distribution Date, Goodrich will deliver to
\nthe Distribution Agent a global certificate representing the aggregate number of
\nshares of EnPro Common Stock to be distributed to Goodrich Shareholders, other
\nthan Goodrich, in the Distribution, which number will be certified by the
\nDistribution Agent. Such certificate shall be registered in the name of the
\nDistribution Agent as agent for the Goodrich Shareholders. As soon as
\npracticable following the Distribution Time, the Distribution Agent will deliver
\nto Goodrich Shareholders stock certificates representing shares of EnPro Common
\nStock. All such distributed shares of EnPro Common Stock shall be fully paid,
\nnonassessable and free of preemptive rights. Shares of EnPro Common Stock
\nrepresented by the global certificate in excess of the final number of shares to
\nbe distributed to Goodrich Shareholders will be canceled.<\/p>\n
Section 2.07 Fractional Shares. No certificates representing
\nfractional shares of EnPro Common Stock will be distributed in the Distribution.
\nGoodrich will direct the Distribution Agent to determine the number of whole
\nshares and fractional shares of EnPro Common Stock allocable to each Goodrich
\nShareholder. Upon the determination by the Distribution Agent of the number of
\nfractional shares of EnPro Common Stock, as soon as practicable after the
\nDistribution Date, the Distribution Agent, acting on behalf of the holders
\nthereof, shall sell such fractional shares for cash on the open market in each
\ncase at the then-prevailing market prices and shall disburse to each holder
\nentitled thereto, in lieu of any fractional share of EnPro Common Stock, without
\ninterest, that holder’s ratable share of the proceeds of that sale, after making
\nappropriate deductions of the amounts required, if any, to be withheld for
\nUnited States federal income tax purposes, and to repay expenses reasonably
\nincurred by the Distribution Agent in connection with such sale.<\/p>\n
ARTICLE 3<\/p>\n
ACCESS TO INFORMATION<\/p>\n
Section 3.01 Provision of Corporate Records. Except as otherwise
\nspecifically set forth in this Agreement, any Transfer Document or any Ancillary
\nAgreement, and subject to normal corporate document retention policies that
\npermit destruction of documents, prior to or as soon as practicable following
\nthe Distribution Date, each Group shall provide to the other Group all
\ndocuments, books, records, computer data and other data (including minute books,
\nstock registers, stock certificates and documents of title) (collectively,
\n“CORPORATE RECORDS”) in its possession relating primarily to the other Group or
\nits businesses, operations or properties (after giving effect to the
\ntransactions contemplated hereby and the Transfer Documents); provided,<\/p>\n
13<\/p>\n
however, that if any such Corporate Records relate to both Groups or the
\nbusinesses, operations or properties of both Groups, each such Group shall
\nprovide to the other Group true and complete copies of such Corporate Records.
\nData stored in electronic form shall be provided in the format in which it
\nexisted at the Distribution Date, except as otherwise specifically set forth in
\nthis Agreement or any Ancillary Agreement or any Transfer Document.<\/p>\n
Section 3.02 Access to Information. From and after the
\nDistribution Date, each Group shall afford promptly to the other Group and its
\naccountants, counsel and other designated representatives reasonable access
\nduring normal business hours to all personnel and Corporate Records in such
\nGroup’s possession relating to the other Group or the businesses, operations or
\nproperties of the other Group (after giving effect to the transactions
\ncontemplated hereby and by the Transfer Documents) (other than data and
\ninformation subject to (i) an attorney-client or other privilege that is not
\nspecifically subject to the provisions of this Article 3 or (ii) in the case of
\nany joint-defense arrangements between a member or members of one Group and a
\nmember or members of the other Group, the access provisions of the relevant
\njoint-defense agreement), insofar as such access is reasonably required by such
\nother Group, including for audit, accounting, litigation, regulatory compliance,
\ndisclosure or reporting purposes.<\/p>\n
Section 3.03 Litigation Cooperation. From and after the
\nDistribution Date:<\/p>\n
(a) Each Group shall use reasonable efforts to make
\navailable to the other Group and its accountants, counsel, and other designated
\nrepresentatives, upon written request, its current and former directors,
\nofficers, employees and representatives as witnesses, and shall otherwise
\ncooperate with the other Group, to the extent reasonably required in connection
\nwith any Action or threatened Action arising out of either Group’s businesses,
\noperations or properties in which the requesting party may from time to time be
\ninvolved and to the extent that there is no conflict in the Action or threatened
\nAction between the requesting Group and itself.<\/p>\n
(b) Each Group shall promptly notify the other Group
\nhereto, upon its receipt or the receipt by any of its members, of a request or
\nrequirement (by written questions, interrogatories, requests for information or
\ndocuments, subpoenas, civil investigative demands or other similar processes)
\nthat relates to the businesses, operations or properties of the other Group
\nreasonably regarded as calling for the inspection or production of any documents
\nor other information in its possession, custody or control, as received from any
\nPerson. In addition to complying with the applicable provisions of Section 3.06,
\neach Group shall assert and maintain, or cause its members to assert and
\nmaintain, any applicable claim to privilege, immunity, confidentiality or
\nprotection in order to protect such documents and other information from
\ndisclosure, and shall seek to condition any disclosure that may be required on
\nsuch protective terms as may be appropriate. Neither Group may voluntarily
\nwaive, undermine or fail to take any action reasonably necessary to preserve an
\napplicable privilege without the prior written consent of the affected party (or
\nany affected Group member or Affiliates of any such party).<\/p>\n
Section 3.04 Reimbursement. Except to the extent that any member
\nof a Group is obligated to indemnify any member of the other Group under
\nArticle 5 for that cost or expense, each Group providing information or
\nwitnesses to the other Group, or otherwise incurring any expense in connection
\nwith its cooperation under Section 3.01, Section 3.02 or Section 3.03, will be
\nentitled to receive from the recipient thereof, upon the presentation of<\/p>\n
14<\/p>\n
reasonably detailed invoices therefor, payment for all out-of-pocket costs and
\nexpenses that may reasonably be incurred in providing such information,
\nwitnesses or cooperation.<\/p>\n
Section 3.05 Treatment of Records. Except as otherwise required
\nby Law or agreed to in writing, upon compliance with the requirements set forth
\nin Section 3.01, each of Goodrich and EnPro shall, and shall cause the members
\nof its respective Group to return any photocopies or similar reproductions of
\nall Corporate Records provided by, or relating primarily to, the other Group or
\nits businesses, operations or properties (after giving effect to the
\nDistribution) to the other Group. Any Corporate Records received by any member
\nof a Group after the Distribution Date and relating primarily to the other Group
\nor its businesses, operations or properties shall promptly be provided to such
\nother Group in accordance with the procedures set forth in Section 3.01 and this
\nSection 3.05. Notwithstanding the foregoing, there shall be no requirement for
\nGoodrich or EnPro, or any members of their respective Groups, to destroy or
\notherwise dispose of any Corporate Records (or photocopies or similar
\nreproductions thereof) to the extent that such Corporate Records relate to its
\nrespective businesses, operations or properties (after giving effect to the
\nDistribution).<\/p>\n
Section 3.06 Preservation of Privilege. Goodrich and EnPro
\nrecognize that in preparation for and as a consequence of the transactions
\ncontemplated by this Agreement, the Ancillary Agreements and the Transfer
\nDocuments, they may have common interests in the defense of certain pending or
\nthreatened Actions that may necessitate the exchange between Goodrich and EnPro
\nor their counsel of documents or other information that is subject to the
\nattorney-client privilege, the work product doctrine or other legally recognized
\nprivileges, protections or immunities from discovery. Each of Goodrich and EnPro
\nagree to take in addition to, and not in limitation of, its obligations under
\nSection 3.03(b) all reasonable efforts to protect and maintain, and to cause its
\nAffiliates to protect and maintain, any applicable claim to privilege, immunity,
\nprotection or confidentiality in order to protect such documents and other
\ninformation from disclosure or use of which the affected party (or any of its
\nAffiliates) does not approve. In addition to, and not in limitation of, its
\nobligations under Section 3.03(b) and without limiting the generality of the
\nforegoing, neither Goodrich nor EnPro nor their respective Affiliates may
\nvoluntarily waive or undermine, or fail to defend in a commercially reasonable
\nmanner, any privilege or protection or take or fail to take any other
\ncommercially reasonable action (a) that could result in the disclosure of any
\ncommon-interest or joint-defense materials to any Person that is neither a party
\nto this Agreement nor an Affiliate of any such party or (b) that would have the
\neffect of waiving or undermining such privilege or protection, in either case,
\nwithout the prior written consent of the affected party and any affected
\nAffiliate of such affected party.<\/p>\n
Section 3.07 Confidentiality. Except as may be more specifically
\naddressed in any Ancillary Agreement or Transfer Document, each party shall hold
\nand shall cause its consultants and advisors and the members of its Group to
\nhold in strict confidence, unless compelled to disclose by judicial or
\nadministrative process or, in the opinion of its counsel, by other requirements
\nof Law or applicable requirements of any national stock exchange or inter-dealer
\nautomated quotation system on which the securities of such party or any of its
\nAffiliates are traded, all information known to be confidential or proprietary
\n(other than any such information relating solely to the businesses, operations
\nor properties of such party) concerning the other Group furnished it by such
\nother Group or its representatives pursuant to this<\/p>\n
15<\/p>\n
Agreement, any Transfer Document or any Ancillary Agreement (except to the
\nextent that such information can be shown to have been (i) previously known by
\nthe receiving party, (ii) in the public domain through no fault of the receiving
\nparty, (iii) independently developed by the receiving party or (iv) disclosed to
\nthe receiving party by a third party without violation of an obligation of
\nconfidentiality known to the receiving party) and each party shall not release
\nor disclose such information to any other Person, except its auditors,
\nattorneys, financial advisors, bankers and other consultants and advisors who
\nshall be advised of the provisions of this Section 3.07. Each party shall
\nexercise the same care to hold confidential information concerning or supplied
\nby the other party as it takes to preserve confidentiality for its own similar
\ninformation.<\/p>\n
Section 3.08 Notice Preceding Compelled Disclosure. If either
\nGroup is legally compelled, pursuant to a subpoena, civil investigative demand,
\nregulatory demand or similar process, to disclose any information which relates
\nto the other Group, such Group will promptly notify the other Group to permit it
\nto seek a protective order or take other appropriate action. The Group will also
\ncooperate in all reasonable efforts by the other Group to obtain a protective
\norder or other reasonable assurance that confidential treatment will be accorded
\nthe information. If, in the absence of a protective order, either Group is
\ncompelled to disclose information as a matter of law (including as a matter of
\nfederal or state securities law) or pursuant to the rules and policies of any
\nnational securities exchange on which any securities of any member of either
\nGroup are listed for trading, such Group may disclose only that part of the
\ninformation as is required by law to be disclosed (in which case, prior to such
\ndisclosure, such Group will advise and consult with the other Group, such Group
\nand its counsel as to such disclosure and the nature and wording of such
\ndisclosure), and, to the extent practical in the circumstances, such Group will
\nuse its reasonable best efforts to obtain confidential treatment for any
\ninformation so disclosed.<\/p>\n
ARTICLE 4<\/p>\n
CERTAIN OTHER AGREEMENTS<\/p>\n
Section 4.01 Post-Distribution Adjustments.<\/p>\n
(a) Cash Adjustment.<\/p>\n
(i) Within 30 days following the Distribution
\n Date, EnPro shall prepare and submit to Goodrich a statement (the “CASH
\n STATEMENT”), based on the consolidated balance sheet of EnPro as of the
\n Distribution Date (after giving effect to the Distribution). The Cash
\n Statement shall set forth in reasonable detail the amount of cash and
\n cash equivalents (the “CASH”) of the EnPro Group, on a consolidated
\n basis, as of the Distribution Date (after giving effect to the
\n Distribution). For purposes of the Cash Statement, Cash will (A)
\n include the amounts of any checks of the EnPro Group that are issued
\n but uncleared as of the Distribution Time, to the extent that the
\n amount of such checks exceeds $2,000,000 in the aggregate, and (B)
\n exclude any lockbox receipts received by the EnPro Group after the
\n Distribution Time.<\/p>\n
(ii) Within ten days following receipt by
\n Goodrich of the Cash Statement, Goodrich shall notify EnPro if it
\n agrees with EnPro’s calculation of Cash or, if Goodrich does not agree
\n with EnPro’s calculation of Cash, of the amount of Cash as<\/p>\n
16<\/p>\n
determined by the Controller of Goodrich. Any such determination made
\n by the Controller of Goodrich shall be conclusive absent manifest
\n error.<\/p>\n
(iii) If, upon completion of the Cash Statement
\n and the final determination of the Cash pursuant to Section
\n 4.01(a)(ii), (A) the Cash is less than the Opening Cash Target,
\n Goodrich shall owe to EnPro the amount of such deficit, or (B) the Cash
\n is greater than the Opening Cash Target, EnPro shall owe to Goodrich
\n the amount of such excess, in each case such amount payable pursuant to
\n Section 4.01(g).<\/p>\n
(b) Net Trade Receivables\/Payables Adjustment.<\/p>\n
(i) Within 30 days following the Distribution
\n Date, Goodrich shall prepare and submit to EnPro a statement (the “NET
\n TRADE RECEIVABLES\/PAYABLES STATEMENT”), based on the consolidated
\n balance sheet of the Engineered Industrial Products operating
\n businesses (as shown by the Hyperion entity “IND_SPCO”) (the “EIP
\n BUSINESSES”) as of the Distribution Date (after giving effect to the
\n Distribution). The Net Trade Receivables\/Payables Statement shall set
\n forth the value of trade receivables as recorded in Hyperion Account
\n “AR_NET” less the value of trade payables as recorded in Hyperion
\n Account “ACCTS_PAY” of the EIP Businesses, on a consolidated basis, as
\n of the Distribution Date (after giving effect to the Distribution) (the
\n “NET RECEIVABLES”).<\/p>\n
(ii) Within ten days following receipt by EnPro
\n of the Net Trade Receivables\/Payables Statement, EnPro shall notify
\n Goodrich if it agrees with Goodrich’s calculation of Net Receivables
\n or, if EnPro does not agree with Goodrich’s calculation of Net
\n Receivables, of the amount of Net Receivables as determined by the
\n Chief Financial Officer of EnPro. Final determination of the amount of
\n Net Receivables will be made by the Controller of Goodrich and any such
\n determination shall be conclusive absent manifest error.<\/p>\n
(iii) If, upon completion of the Net Trade
\n Receivables\/Payables Statement and the final determination of the Net
\n Receivables pursuant to Section 4.01(b)(ii), the Net Receivables
\n exceeds $55,800,000, Goodrich shall have the right, but not the
\n obligation (the “NTR\/P OPTION”), to require EnPro to pay to Goodrich
\n the amount by which the Net Receivables exceeds $55,800,000 (the
\n “EXCESS”). Within ten days following final determination of the Net
\n Receivables pursuant to Section 4.01(b)(ii), Goodrich will provide
\n notice to EnPro setting forth whether Goodrich will exercise its NTR\/P
\n Option and the amount of the Excess Goodrich will require EnPro to owe
\n to Goodrich, such amount payable pursuant to Section 4.01(g).<\/p>\n
(c) Other Liabilities\/Assets Adjustment.<\/p>\n
(i) Within 30 days following the Distribution
\n Date, Goodrich shall prepare and submit to EnPro a statement (the “NET
\n OTHER LIABILITIES\/ASSETS STATEMENT”), based on the consolidated balance
\n sheet of the EIP Businesses as of the Distribution Date (after giving
\n effect to the Distribution). The Net Other Liabilities\/Assets Statement
\n shall set forth the value of accrued expenses plus other non-current
\n liabilities as recorded in Hyperion Accounts “ACC_EXP” and “OTHER_NC”,
\n respectively, less the value of other non-current assets as recorded in
\n Hyperion Account “OTH_ASSETS” of the EIP<\/p>\n
17<\/p>\n
Businesses, on a consolidated basis, as of the Distribution Date (after
\n giving effect to the Distribution) (the “NET OTHER
\n LIABILITIES\/ASSETS”).<\/p>\n
(ii) Within ten days following receipt by EnPro
\n of the Net Other Liabilities\/Assets Statement, EnPro shall notify
\n Goodrich if it agrees with Goodrich’s calculation of Net Other
\n Liabilities\/Assets or, if EnPro does not agree with Goodrich’s
\n calculation of Net Other Liabilities\/Assets, of the amount of Net Other
\n Liabilities\/Assets as determined by the Chief Financial Officer of
\n EnPro. Final determination of the amount of Net Other
\n Liabilities\/Assets will be made by the Controller of Goodrich and any
\n such determination shall be conclusive absent manifest error.<\/p>\n
(iii) If, upon completion of the Net Other
\n Liabilities\/Assets Statement and the final determination of the Net
\n Other Liabilities\/Assets pursuant to Section 4.01(c)(ii), the Net Other
\n Liabilities\/Assets are less than $51,000,000, Goodrich shall have the
\n right, but not the obligation (the “OL\/A OPTION”) to require EnPro to
\n pay to Goodrich the amount by which the Net Other Liabilities\/Assets is
\n less than $51,000,000 (the “SHORTFALL”). Within ten days following the
\n final determination of the Net Other Liabilities\/Assets pursuant to
\n Section 4.01(c)(ii), Goodrich will provide notice to EnPro setting
\n forth whether Goodrich will exercise its OL\/A Option and the amount of
\n the Shortfall Goodrich will require EnPro to owe to Goodrich, such
\n amount payable pursuant to Section 4.01(g).<\/p>\n
(d) Asbestos Payments Adjustment.<\/p>\n
(i) Within 45 days following the Distribution
\n Date, EnPro shall prepare and submit to Goodrich a statement (the
\n “ASBESTOS PAYMENTS STATEMENT”). The Asbestos Payments Statement shall
\n set forth in reasonable detail the total amount of payments (the
\n “ASBESTOS PAYMENTS”) made by any member of the EnPro Group to any third
\n party from January 1, 2002 through the Distribution Date related to
\n asbestos indemnity, defense and administration.<\/p>\n
(ii) Within ten days following receipt by
\n Goodrich of the Asbestos Payments Statement, Goodrich shall notify
\n EnPro if it agrees with EnPro’s calculation of the Asbestos Payments
\n or, if Goodrich does not agree with EnPro’s calculation of the Asbestos
\n Payments, of the amount of Asbestos Payments as determined by the
\n Controller of Goodrich. Any such determination made by the Controller
\n of Goodrich shall be conclusive absent manifest error.<\/p>\n
(iii) If, upon completion of the Asbestos Payments
\n Statement and the final determination of the Asbestos Payments pursuant
\n to Section 4.01(d)(ii), the Asbestos Payments exceed $74,000,000,
\n Goodrich shall have the right, but not the obligation (the “AP
\n OPTION”), to require EnPro to pay to Goodrich the amount by which the
\n Asbestos Payments exceed $74,000,000 (the “AP EXCESS”). Within ten days
\n following final determination of the Asbestos Payments pursuant to
\n Section 4.01(d)(ii), Goodrich will provide notice to EnPro setting
\n forth whether Goodrich will exercise its AP Option and the amount of
\n the AP Excess Goodrich will require EnPro to owe to Goodrich, such
\n amount payable pursuant to Section 4.01(g).<\/p>\n
18<\/p>\n
(e) General.<\/p>\n
(i) During the periods the Cash Statement and
\n the Asbestos Payments Statement (collectively, the “STATEMENTS”) are
\n being prepared, Goodrich shall have the right to oversee the
\n preparation of the Statements and to participate in the preparation of
\n the Statements. During the period the Net Trade Receivables\/Payables
\n Statement and the Net Other Liabilities\/Assets Statement is being
\n prepared, EnPro shall have the right to participate in the preparation
\n of these statements.<\/p>\n
(ii) Each party shall provide the other party and
\n its representatives with reasonable access to books and records and
\n relevant personnel during the preparation of the Statements, the Net
\n Trade Receivables\/Payables Statement and the Net Other
\n Liabilities\/Assets Statement.<\/p>\n
(iii) Except as otherwise provided in Section
\n 4.01(a)(i)(A) hereof, (a) the Statements shall be prepared in
\n accordance with Coltec’s Prior Accounting Practices and Policies, and
\n (b) any calculations by the Controller of Goodrich shall be made in
\n good faith in accordance with Coltec’s Prior Accounting Practices and
\n Policies.<\/p>\n
(f) Characterization of Payments. Notwithstanding that
\nthis Section 4.01 provides for payments to be made by EnPro to Goodrich, the
\nactual payment obligation is an obligation of Coltec to GPEC, and such payments
\nshall be made in accordance with Section 4.01(g). It is the intention of the
\nparties to this Agreement that such payments be treated as relating back to the
\npre-Distribution transactions between Coltec and GPEC as adjustments to capital
\n(i.e., capital contributions to GPEC). The parties shall not take any position
\ninconsistent with such intention before any taxing authority, except to the
\nextent that a final determination (as defined in section 1313 of the Code)
\ncauses any such payment not to be so treated.<\/p>\n
(g) Provisions for Payment.<\/p>\n
(i) Upon execution of this Agreement, Coltec
\n shall deposit $9,000,000 (the “ESCROW PROPERTY”) in an account to be
\n held and administered by the Escrow Agent pursuant to the terms of the
\n Escrow Agreement.<\/p>\n
(ii) When either party is entitled to payment
\n from the other under this Section 4.01, such amount shall be payable
\n from the Escrow Property pursuant to the terms of the Escrow Agreement.
\n If the Escrow Property is depleted, the party to be paid shall recover
\n any amounts directly from the party who is obligated to pay and such
\n amounts (A) shall be paid within five Business Days following (x) the
\n date the Controller of Goodrich finally determines the amount to be
\n paid pursuant to Section 4.01(a) or, (y) the date notice is provided by
\n Goodrich that it will exercise its option pursuant to Section 4.01(b),
\n Section 4.01(c) or Section 4.01(d), (B) shall be paid by wire transfer
\n in immediately available funds to an account designated by the payee,
\n and (C) if paid after June 1, 2002, shall include interest on such
\n amount at the rate of one percent per month, compounded daily from
\n June 1, 2002 until the payment date.<\/p>\n
(h) Payments by Goodrich to EnPro.<\/p>\n
19<\/p>\n
(i) Any payment by Goodrich to EnPro under
\n Section 4.01(a) shall be netted against any payments due to Goodrich
\n from EnPro under Section 4.01(b), Section 4.01(c) and Section 4.01(d).<\/p>\n
(ii) Notwithstanding any other provision of this
\n Section 4.01, the net payment from Goodrich to EnPro under Section
\n 4.01(h)(i) shall not exceed (x) ten percent (10%) of the value of
\n EnPro’s assets at the Distribution Time on the Distribution Date, less
\n (y) the value of any assets of EnPro that are not Coltec Stock or the
\n Promissory Note (as those terms are defined in the Contribution
\n Agreement between Goodrich and EnPro of even date herewith).<\/p>\n
Section 4.02 Intercompany Accounts.<\/p>\n
(a) Except as otherwise specifically set forth in any
\nTransfer Document or any Ancillary Agreement, all intercompany trade, accounts
\nreceivable and accounts payable between any member of one Group and any member
\nof another Group in existence at the Distribution Time shall be settled and paid
\nin accordance with their terms.<\/p>\n
(b) On or before the Distribution Date, each of Goodrich
\nand EnPro shall enter into, or, where applicable, shall cause its respective
\nSubsidiary or Subsidiaries to enter into, each Ancillary Agreement.<\/p>\n
(c) On or before the Distribution Date, each of Goodrich
\nand EnPro shall enter into, or, where applicable, shall cause its respective
\nSubsidiary or Subsidiaries to enter into, each Transfer Document.<\/p>\n
Section 4.03 Further Assurances and Consents. In addition to the
\nactions specifically provided for elsewhere in this Agreement, each of Goodrich,
\nEnPro and Coltec shall use its reasonable efforts to take, or cause to be taken,
\nall actions, and to do, or cause to be done, all things reasonably necessary,
\nadvisable or appropriate under applicable Laws or otherwise to consummate and
\nmake effective the transactions contemplated by this Agreement, the Ancillary
\nAgreements and the Transfer Documents, including using its reasonable efforts to
\nobtain any consents and approvals, to enter into all agreements and to make any
\nfilings and applications necessary, advisable or appropriate in order to
\nconsummate the transactions contemplated by this Agreement. Notwithstanding the
\nforegoing, no party shall be obligated to pay any consideration therefor (except
\nfor filing fees and other similar charges) to any third party from whom such
\nconsents or approvals are requested or to take any action or omit to take any
\naction if the taking of or the omission to take such action would be
\nunreasonably burdensome to the party, its Group or its Group’s business. Each of
\nGoodrich, EnPro and Coltec agree to enter into and execute such additional
\ndocuments as may be reasonably necessary, advisable or appropriate to effect the
\ntransactions contemplated by this Agreement, any Transfer Document or any
\nAncillary Agreement; provided, however, that such additional documents shall not
\ndiminish any of the rights granted or increase any of the Liabilities of either
\nGroup, as set forth in this Agreement, any Transfer Document or any Ancillary
\nAgreement.<\/p>\n
Section 4.04 Payments. If, after the Distribution Time, any party
\nor any member of such party’s Group receives payments belonging to another party
\nor any member of<\/p>\n
20<\/p>\n
such other party’s Group, the recipient shall promptly account for and remit
\nsaid payment (or cause it to be accounted for and remitted) to such other party.<\/p>\n
ARTICLE 5<\/p>\n
INDEMNIFICATION<\/p>\n
Section 5.01 Exculpation and Indemnification by EnPro. Subject to
\nthe provisions of Section 5.03, from and after the Distribution Date, each of
\nEnPro and Coltec, without any further responsibility or liability of, or
\nrecourse to, Goodrich, any member of the Goodrich Group, any Affiliate of
\nGoodrich or any of their respective directors, shareholders, officers,
\nemployees, agents, consultants, representatives, successors, transferees or
\nassignees (collectively, the “GOODRICH INDEMNITEES”), shall as between EnPro and
\nColtec, on the one hand, and the Goodrich Group, on the other hand, absolutely
\nand irrevocably be solely liable and responsible for the EnPro Group Liabilities
\nand shall indemnify, defend, save and hold harmless Goodrich and each of the
\nGoodrich Indemnitees from and against all Damages not actually paid by cash or
\ndelivery of products or services by the Indemnified Party prior to the Aerospace
\nDistribution Date and arising out of, associated with or resulting from (i) any
\nEnPro Group Liability and (ii) the breach by EnPro, Coltec or any other member
\nof the EnPro Group of any of its obligations under this Agreement or any
\nTransfer Document (clauses (i) and (ii) are collectively referred to as the
\n“ENPRO INDEMNIFIABLE LIABILITIES”). Neither Goodrich nor any Goodrich Indemnitee
\nshall be liable to EnPro, Coltec, any other member of the EnPro Group or any of
\ntheir respective Affiliates, directors, shareholders, officers, employees,
\nagents, consultants, customers, end users (including any Persons who came into
\ncontact with any product associated with the EnPro Business), representatives,
\nsuccessors, transferees or assignees for any reason whatsoever on account of any
\nEnPro Indemnifiable Liabilities. Notwithstanding the foregoing, Goodrich shall
\nremain liable to EnPro and Coltec for any breach by Goodrich or any member of
\nthe Goodrich Group of any of its or their obligations under this Agreement.<\/p>\n
Section 5.02 Exculpation and Indemnification by Goodrich. Subject
\nto the provisions of Section 5.03, from and after the Distribution Date,
\nGoodrich, without any further responsibility or liability of, or recourse to,
\nEnPro, any member of the EnPro Group, any Affiliate of EnPro or any of their
\nrespective directors, shareholders, officers, employees, agents, consultants,
\nrepresentatives, successors, transferees or assignees (collectively, the “ENPRO
\nINDEMNITEES”), shall as between Goodrich and the EnPro Group absolutely and
\nirrevocably be solely liable and responsible for the Goodrich Group Liabilities
\nand shall indemnify, defend, save and hold harmless EnPro and each of the EnPro
\nIndemnitees from and against all Damages not actually paid by cash or delivery
\nof products or services by the Indemnified Party prior to the Aerospace
\nDistribution Date and arising out of, associated with or resulting from (i) any
\nGoodrich Group Liability and (ii) the breach by Goodrich or any member of the
\nGoodrich Group of any of its obligations under this Agreement or any Transfer
\nDocument (clauses (i) and (ii) are collectively referred to as the “GOODRICH
\nINDEMNIFIABLE LIABILITIES”). Neither EnPro nor any of the other EnPro
\nIndemnitees shall be liable to Goodrich, any member of the Goodrich Group or any
\nof their respective Affiliates, directors, shareholders, officers, employees,
\nagents, consultants, customers, end users (including any Persons who come in
\ncontact with any product associated with the Goodrich Business),
\nrepresentatives, successors, transferees or assignees for any reason whatsoever
\non account of any Goodrich Indemnifiable Liabilities. Notwithstanding<\/p>\n
21<\/p>\n
the foregoing, EnPro shall remain liable to Goodrich for any breach by EnPro or
\nany member of the EnPro Group of any of its or their obligations under this
\nAgreement.<\/p>\n
Section 5.03 Third Party Claims; Notice and Payment of Claims.<\/p>\n
(a) (i) If either a party to this Agreement or any Person
\nentitled to a defense or indemnification under this Agreement (an “INDEMNIFIED
\nPARTY”) determines that it is or may be entitled to a defense or indemnification
\nby Goodrich, on the one hand, or EnPro or Coltec, on the other hand, as the case
\nmay be (the “INDEMNIFYING PARTY”), under this Agreement:<\/p>\n
(A) the Indemnified Party shall deliver promptly
\n to the Indemnifying Party a written notice and demand for a
\n defense or indemnification, specifying the basis for the claim
\n for defense or indemnification, the nature of the claim, and,
\n if known, the amount for which the Indemnified Party
\n reasonably believes it is entitled to be indemnified; and<\/p>\n
(B) the Indemnifying Party shall deliver to the
\n Indemnified Party promptly after receipt of the notice
\n requesting indemnification a written notice stating that the
\n Indemnifying Party intends to (x) assume the defense of such
\n litigation or claim (subject to Section 5.04(a)); (y) pay the
\n claim in immediately available funds; or (z) object or reserve
\n its rights with respect to the demand for a defense or
\n indemnification.<\/p>\n
(ii) If the amount for which the Indemnifying
\n Party may be liable is not known or reasonably determinable at the time
\n of such notice, the Indemnified Party shall deliver to the Indemnifying
\n Party a further notice specifying the amount for which the Indemnified
\n Party reasonably believes it is entitled to be indemnified as soon as
\n reasonably practicable after such amount is known or reasonably
\n determinable and the Indemnifying Party shall have a further
\n opportunity to take action as set forth above. Nothing in this section
\n shall be interpreted to abrogate or delay a party’s obligation to
\n provide the other with a defense under this Agreement.<\/p>\n
(iii) The failure by an Indemnified Party to
\n promptly notify an Indemnifying Party of a notice and demand for a
\n defense or indemnification shall not relieve the Indemnifying Party of
\n any indemnification or defense responsibility under this Article 5,
\n except to the extent such failure materially prejudices the ability of
\n the Indemnifying Party to defend such claim.<\/p>\n
(b) Any objection to a claim for a defense or
\nindemnification shall be resolved in accordance with Article 7. Anything in this
\nArticle to the contrary notwithstanding, the Indemnifying Party shall not
\nwithout the Indemnified Party’s prior written consent, which shall not be
\nunreasonably withheld, settle or compromise any Action or claim or consent to
\nthe entry of any judgment with respect to any Action, claim or proceeding for
\nanything other than money damages paid by the Indemnifying Party unless the
\nsettlement does not involve the imposition of any liability on the Indemnified
\nParty or any restriction on its activities.<\/p>\n
(c) The amount of any Damages for which an Indemnifying
\nParty must provide indemnification hereunder shall be reduced by any insurance
\nrecovery if and when<\/p>\n
22<\/p>\n
actually realized or received by the Indemnified Party. With regard to any claim
\nwhich is covered by a third party non-captive insurance policy of the
\nIndemnified Party, the Indemnified Party shall reasonably pursue all rights
\nthereunder. If an Indemnified Party receives an amount under insurance coverage
\nwith respect to Damages at any time subsequent to any indemnification provided
\nby an Indemnifying Party pursuant to this Article 5, then, subject to
\nsubparagraphs (d) and (e) below, such Indemnified Party shall promptly reimburse
\nthe Indemnifying Party for any payment made or expense incurred by such
\nIndemnifying Party in connection with providing such indemnification up to such
\namount actually received by the Indemnified Party. The potential availability of
\ninsurance coverage to Goodrich or EnPro shall not relieve the Indemnifying Party
\nof its obligations for defense or indemnification hereunder or delay its
\nobligation to defend or pay any sums due hereunder. If an Indemnified Party
\nseeks to resolve an insurance coverage dispute with a third party non-captive
\ninsurer by entering into a settlement agreement, including any buyback
\nagreement, that releases the insurer from claims or potential claims under the
\ninsurer’s policy that, in the absence of insurance coverage, are the
\nresponsibility of the Indemnifying Party, the Indemnified Party must obtain the
\nIndemnifying Party’s written consent prior to entering the settlement agreement
\nwith the insurer. Subject to paragraphs (d) and (e) below, the Indemnifying
\nParty shall be entitled to the portion of such settlement proceeds that relate
\nto the claims or potential claims that are subject to indemnity.<\/p>\n
(d) If any proceeds under any Goodrich Group captive
\ninsurance policy are paid to the EnPro Group with respect to any Damages, such
\namounts shall be reimbursed to the Goodrich Group by EnPro.<\/p>\n
(e) If any proceeds from the Coltec Insurance Block are
\npaid to the Goodrich Group with respect to any Damages, such amounts shall be
\nreimbursed to the EnPro Group by Goodrich; provided, however, that the
\nreimbursement of such amounts by Goodrich shall not relieve the Indemnifying
\nParty of its obligations for defense or indemnification with respect to such
\namounts or delay its obligation to defend or pay such amounts to the Indemnified
\nParty pursuant to this Article 5. The “COLTEC INSURANCE BLOCK” is defined as the
\ngeneral liability insurance policies purchased by Colt Industries Inc, now known
\nas Coltec Industries Inc, that were in place for public and products liability
\nfor third party bodily injury and property damage claims (whether primary,
\numbrella or excess policies) and that were in effect from July 1, 1974 through
\nJuly 1, 1985.<\/p>\n
Section 5.04 Procedures for Defense of Third-Party Claims.<\/p>\n
(a) If the Indemnified Party’s claim for indemnification
\nis based, under this Agreement, on an Action, judicial or otherwise, brought by
\na third party, and the Indemnifying Party does not object under Section
\n5.03(b)), the Indemnifying Party shall assume the defense of such third-party
\nclaim at the Indemnifying Party’s sole cost and expense. Any such defenses shall
\nbe conducted by attorneys employed or retained by the Indemnifying Party and
\nreasonably acceptable to the Indemnified Party. The Indemnified Party shall have
\nthe right to participate in (but not control) the defense of such claim at its
\nsole cost and expense. Notwithstanding the first sentence of this Section
\n5.04(a), if (i) the Indemnifying Party does not assume the defense of a claim as
\nprovided in this Section 5.04(a), (ii) the nature of any claim presents a
\nconflict of interest between the Indemnified Party and the Indemnifying Party or
\n(iii) as otherwise provided on Schedule 5.04(a), then the Indemnified Party may
\nassume and control its own defense, and<\/p>\n
23<\/p>\n
the Indemnifying Party shall be liable for all reasonable costs or expenses paid
\nor incurred by the Indemnified Party in connection therewith.<\/p>\n
(b) The Indemnifying Party shall pay to the Indemnified
\nParty in immediately available funds the amounts for which the Indemnified Party
\nis entitled to be indemnified within 30 days after such third-party claim is
\nFinally Determined (or within such longer period as agreed to by the parties).
\nIf the Indemnifying Party does not assume the defense of any such third-party
\nclaims, the Indemnifying Party shall be bound by the result obtained with
\nrespect thereto by the Indemnified Party, except that the Indemnifying Party has
\nthe right to contest that it is obligated to the Indemnified Party in respect of
\nthe third-party claim under the terms of this Agreement.<\/p>\n
Section 5.05 Specific Indemnification Issues.<\/p>\n
(a) Notwithstanding anything in this Agreement to the
\ncontrary: (i) any claims or demands in connection with the Goodrich Litigation
\nor the EnPro Litigation shall not be deemed to be third-party claims for
\npurposes of this Agreement; (ii) Goodrich, with respect to the Goodrich
\nLitigation, and EnPro, with respect to the EnPro Litigation, shall have the
\nexclusive right to (A) control the defense of such litigation and (B) settle,
\ncompromise or discharge such litigation; and (iii) Goodrich, with respect to the
\nEnPro Litigation, and EnPro, with respect to the Goodrich Litigation, shall:
\n(Y) provide cooperation in litigation pursuant to the terms of Section 3.03; and
\n(Z) to the extent reasonably requested by Goodrich or EnPro, as the case may be,
\nsign such documents as may be reasonably necessary to effect or assist in the
\npursuit, defense, settlement, compromise or discharge of such litigation.<\/p>\n
(b) If the indemnification provided for in this Article 5
\nis unavailable to an Indemnified Party with respect to a loss for which
\nindemnification would otherwise be required to be provided pursuant to the terms
\nhereof that arises out of or is related to information contained in the
\nInformation Statement or Form 10, then the Indemnifying Party, in lieu of
\nindemnifying such Indemnified Party, shall contribute to the amount paid or
\npayable by such Indemnified Party as a result of such loss, in such proportion
\nas is appropriate to reflect the relative fault of Goodrich, on the one hand,
\nand EnPro, on the other hand. The relative fault of any party shall be
\ndetermined by reference to, among other things, whether the untrue or alleged
\nuntrue statement of a material fact or the omission or alleged omission to state
\na material fact relates to information supplied by that party or a member of its
\nGroup. Goodrich and EnPro have entered into a letter agreement that sets forth
\nthe responsibilities of the parties for the disclosure in the Information
\nStatement and Form 10 (the “SIDE LETTER”).<\/p>\n
(c) With respect to any Liabilities or any Actions
\narising out of or associated with, or alleged to arise out of or be associated
\nwith, an act or omission of any former, current or future officer, director,
\nemployee or agent of Goodrich on the one hand, or EnPro or any Contributed
\nSubsidiary on the other hand, prior to the Distribution Date, the respective
\nobligations of Goodrich and EnPro pursuant to this Agreement (including their
\nrespective indemnification obligations) shall remain unaffected and in full
\nforce and effect, regardless of whether such person was, at the time of such act
\nor omission, an officer, director, employee or agent whose duties related
\nprimarily to the Goodrich Business or the EnPro Business, and regardless of
\nwhether such Liabilities or Actions are alleged or determined in any judgment,<\/p>\n
24<\/p>\n
award or decree after trial to arise out of or be associated with such person’s
\nnegligence, gross negligence, recklessness or intentional conduct or
\nculpability.<\/p>\n
(d) The parties acknowledge that after the Distribution
\nDate the parties will have negotiated business relationships, which
\nrelationships will be described in contracts, agreements and other documents
\nentered into in the normal course of business. Such documents may include
\nagreements by the parties and their Affiliates and Subsidiaries to supply, after
\nthe Distribution Date, materials, products and services and to lease facilities,
\ntangible and intangible property. Such business relationships shall not be
\nsubject to the indemnity provisions hereof, unless the parties expressly agree
\nto the contrary in the agreements governing such relationships.<\/p>\n
(e) Except as otherwise provided herein, in the event an
\nAction is brought by a third party in which the liability as between Goodrich
\nand EnPro is Finally Determined to be joint or in which the entitlement to
\nindemnification hereunder is not readily determinable, the parties shall
\nnegotiate in good faith in an effort to agree, as between Goodrich, on the one
\nhand, and EnPro and Coltec, on the other hand, on the proper allocation of
\nliability or entitlement to indemnification, as well as the proper allocation of
\nthe costs of any joint defense or settlement pursuant to Section 5.04, all in
\naccordance with the provisions of, and the principles set forth in, this
\nAgreement. In the absence of any such agreement, such allocation of liability or
\nentitlement to indemnification, and such allocation of costs, shall be subject
\nto ultimate resolution between Goodrich, on the one hand, and EnPro and Coltec,
\non the other hand, pursuant to Article 7.<\/p>\n
(f) Certain of the indemnity provisions in this Article 5
\nrelate to obligations undertaken by Coltec and Goodrich in connection with
\ncertain transactions between Coltec and GPEC occurring prior to the Aerospace
\nDistribution Date and certain transactions between Goodrich and EnPro occurring
\nprior to the Aerospace Distribution Date. It is the intention of the parties
\nthat any payments arising out of such obligations be treated as relating back to
\nsuch transactions as adjustments to capital (i.e., capital contributions to GPEC
\nor EnPro, as the case may be), and the parties shall not take any position
\ninconsistent with such intention before any Tax authority, except to the extent
\nthat a final determination (as defined in Section 1313 of the Code) with respect
\nto the recipient party causes any such payment not to be so treated.<\/p>\n
25<\/p>\n
ARTICLE 6<\/p>\n
RELEASES<\/p>\n
Section 6.01 Release of Pre-Distribution Claims.<\/p>\n
(a) Except as provided in Section 6.01(c)(i), effective
\nas of the Distribution Date, each of EnPro and Coltec does hereby, for itself
\nand each other member of the EnPro Group and their respective Affiliates,
\nsuccessors and assigns, and all Persons who at any time prior to the
\nDistribution Date have been directors, shareholders, officers, employees,
\nagents, consultants, representatives or successors of any member of the EnPro
\nGroup (in each case, in their respective capacities as such and in a derivative
\nand not personal capacity), remise, fully and forever release and absolutely
\ndischarge each of Goodrich, the members of the Goodrich Group, their respective
\nAffiliates, successors and assigns, and all Persons who at any time prior to the
\nDistribution Date have been directors, shareholders, officers, employees,
\nagents, consultants, representatives or successors of any member of the Goodrich
\nGroup (in each case, in their respective capacities as such), and their
\nrespective heirs, executors, administrators, successors and assigns
\n(collectively, the “GOODRICH RELEASED PARTIES”), from any and all Liabilities
\nwhatsoever, whether at law or in equity (including any right of contribution),
\nwhether arising under any contract or agreement, by operation of law or
\notherwise, existing or arising from any acts or events occurring or failing to
\noccur or alleged to have occurred or to have failed to occur or any conditions
\nexisting or alleged to have existed on or before the Distribution Date,
\nincluding in connection with the transactions and all other activities to
\nimplement the Distribution.<\/p>\n
(b) Except as provided in Section 6.01(c)(i), effective
\nas of the Distribution Date, Goodrich does hereby, for itself and each other
\nmember of the Goodrich Group and their respective Affiliates, successors and
\nassigns, and all Persons who at any time prior to the Distribution Date have
\nbeen directors, shareholders, officers, employees, agents, consultants,
\nrepresentatives or successors of any member of the Goodrich Group (in each case,
\nin their respective capacities as such and in a derivative and not personal
\ncapacity), remise, fully and forever release and absolutely discharge each of
\nEnPro, the members of the EnPro Group, their respective Affiliates, successors
\nand assigns, and all Persons who at any time prior to the Distribution Date have
\nbeen directors, shareholders, officers, employees, agents, consultants,
\nrepresentatives or successors of any member of the EnPro Group (in each case, in
\ntheir respective capacities as such), and their respective heirs, executors,
\nadministrators, successors and assigns (collectively, the “ENPRO RELEASED
\nPARTIES”), from any and all Liabilities whatsoever, whether at law or in equity
\n(including any right of contribution), whether arising under any contract or
\nagreement, by operation of law or otherwise, existing or arising from any acts
\nor events occurring or failing to occur or alleged to have occurred or to have
\nfailed to occur or any conditions existing or alleged to have existed on or
\nbefore the Distribution Date, including in connection with the transactions and
\nall other activities to implement the Distribution.<\/p>\n
(c) Notwithstanding anything to the contrary in
\nSection 6.01(a) or Section 6.01(b):<\/p>\n
26<\/p>\n
(i) Nothing contained in Section 6.01(a) or
\n Section 6.01(b) shall impair any right of any Person to enforce this
\n Agreement, any Ancillary Agreement or any Transfer Document in
\n accordance with its terms. Nothing contained in Section 6.01(a) or
\n Section 6.01(b) shall release any Person from:<\/p>\n
(A) any Liabilities, contingent or otherwise,
\n assumed, transferred, assigned or allocated to the Group of
\n which such Person is a member in accordance with, or any other
\n Liability of any member of any Group under the Transfer
\n Documents or any Ancillary Agreement;<\/p>\n
(B) any Liability that the parties may have with
\n respect to indemnification or contribution pursuant to this
\n Agreement for claims brought against the parties by third
\n Persons, which Liability shall be governed by the provisions
\n of Article 7 and, if applicable, the appropriate provisions of
\n the Ancillary Agreement; or<\/p>\n
(C) any Liability the release of which would
\n result in the release of any Person other than a Person
\n released pursuant to this Section 6.01; provided, however,
\n that the parties agree not to bring suit or permit any of
\n their Subsidiaries to bring suit against any Person with
\n respect to any Liability to the extent that such Person would
\n be released with respect thereto by this Section 6.01 but for
\n the provisions of this clause (C).<\/p>\n
(ii) Nothing contained in Section 6.01(a) shall
\n release Goodrich from honoring its existing obligations (A) to
\n indemnify any former, current or future director, officer or employee
\n of EnPro who was a director, officer or employee of Goodrich or any
\n Subsidiary of Goodrich on or prior to the Distribution Date, to the
\n extent such director, officer or employee becomes a named defendant in
\n any litigation involving Goodrich or any former or current Subsidiary
\n of Goodrich and was entitled to such indemnification pursuant to then
\n existing obligations or (B) as a guarantor of the TIDES.<\/p>\n
(iii) Nothing contained in Section 6.01(b) shall
\n release any member of the EnPro Group from honoring its existing
\n obligations to indemnify any former, current or future director,
\n officer or employee of Goodrich who was a director, officer or employee
\n of any member of the EnPro Group on or prior to the Distribution Date,
\n to the extent such director, officer or employee becomes a named
\n defendant in any litigation involving any member of the EnPro Group and
\n was entitled to such indemnification pursuant to then existing
\n obligations.<\/p>\n
(d) EnPro shall not, and shall not permit any member of
\n the EnPro Group, to make any claim or demand or commence any Action
\n asserting any claim or demand, including any claim of contribution or
\n any indemnification, against Goodrich or any member of the Goodrich
\n Group, or any other Person released pursuant to Section 6.01(a), with
\n respect to any Liabilities released pursuant to Section 6.01(a).
\n Goodrich shall not, and shall not permit any member of the Goodrich
\n Group, to make any claim or demand or commence any Action asserting
\n any claim or demand, including any claim of contribution or any
\n indemnification against EnPro or any member of the EnPro Group, or any
\n other Person released pursuant to Section 6.01(b), with respect to any
\n Liabilities released pursuant to Section 6.01(b).<\/p>\n
27<\/p>\n
(e) It is the intent of Goodrich, EnPro and Coltec, by
\nvirtue of the provisions of this Section 6.01, to provide for a full and
\ncomplete release and discharge of all Liabilities existing or arising from all
\nacts and events occurring or failing to occur or alleged to have occurred or to
\nhave failed to occur and all conditions existing or alleged to have existed on
\nor before the Distribution Date between or among EnPro or any member of the
\nEnPro Group, on the one hand, and Goodrich or any member of the Goodrich Group,
\non the other hand (including any contractual agreements or arrangements existing
\nor alleged to exist between or among any such members on or before the
\nDistribution Date), except as expressly set forth in Section 6.01(c). At any
\ntime, at the request of any other party, each party shall cause each member of
\nits respective Group to execute and deliver releases reflecting the provisions
\nhereof.<\/p>\n
ARTICLE 7<\/p>\n
DISPUTE RESOLUTION<\/p>\n
Section 7.01 Application. Any dispute arising out of or relating
\nto this Agreement (excluding under Section 4.01, which disputes will be resolved
\nin accordance with the terms of such section), including the breach or
\ntermination hereof, shall be resolved in accordance with the procedures
\nspecified in this Article 7, which shall be the sole and exclusive procedure for
\nthe resolution of any such disputes; provided, however, that a party may file a
\ncomplaint to seek a preliminary injunction or other provisional judicial relief,
\nif in its sole judgment such action is necessary. Despite such action, the
\nparties will continue to participate in good faith in the procedures set forth
\nin this Article 7 and each party is required to continue to perform its
\nobligations under this Agreement, pending final resolution of any dispute
\narising out of or relating to this Agreement, unless to do so would be
\nimpossible or impracticable under the circumstances. All negotiations between
\nthe parties pursuant to this Article 7 are confidential and shall be treated as
\ncompromise and settlement negotiations for purposes of applicable rules of
\nevidence. The requirements of this Article 7 shall not be deemed a waiver of any
\nright of termination under this Agreement.<\/p>\n
Section 7.02 Initial Discussions. Any dispute shall be first
\ndiscussed by an appropriate senior executive officer of each of the parties or
\nhis or her designee. Any party may initiate such discussions by giving the other
\nparty written notice specifying in detail the nature of the dispute. Within 15
\nBusiness Days after delivery of the notice, the receiving party shall submit to
\nthe other a written response, which includes a statement of such party’s
\nposition and a summary of arguments supporting such position. Within ten
\nBusiness Days (or such other period as agreed upon by the parties) after receipt
\nof such response, the executives of both parties shall meet at a mutually
\nacceptable time and place, and thereafter as often as they reasonably deem
\nnecessary, to attempt to resolve the dispute. All reasonable requests for
\ninformation made by one party to the other shall be honored.<\/p>\n
Section 7.03 Appeal to Higher Management. If, in spite of such
\ndiscussions, no mutually acceptable solution is reached within 30 Business Days
\nafter the delivery of one party’s written request to the other party to discuss
\nsuch dispute, any such dispute shall be referred to the respective chief
\nexecutive officers of the parties.<\/p>\n
Section 7.04 Mediation. If the dispute is not resolved within 30
\nBusiness Days (or such other period as agreed upon by the parties) following the
\nsubmission of the dispute to<\/p>\n
28<\/p>\n
the chief executive officers, the parties shall attempt to resolve the dispute
\nemploying non-binding mediation under the then-current CPR Mediation Procedure.
\nIf within ten Business Days (or any other period agreed upon by the parties)
\nafter the commencement of such mediation the dispute still has not been
\nresolved, each of the parties may pursue any available legal or equitable
\nremedy.<\/p>\n
Section 7.05 Jurisdiction. Any Action seeking to enforce any
\nprovision of, or based on any matter arising out of or in connection with, this
\nAgreement or the transactions contemplated hereby may be brought in any court of
\ncompetent jurisdiction sitting in the State of New York, and each of the parties
\nhereby consents to the jurisdiction of such court (and of the appropriate
\nappellate courts therefrom) in any such Action and irrevocably waives, to the
\nfullest extent permitted by law, any objection which it may now or hereafter
\nhave to the laying of the venue of any such Action in any such court or that any
\nsuch action which is brought in any such court has been brought in an
\ninconvenient forum. Process in any such Action may be served on any party
\nanywhere in the world, whether within or without the jurisdiction of any such
\ncourt. Without limiting the foregoing, each party agrees that service of process
\non such party as provided in this Section 7.05 shall be deemed effective service
\nof process on such party.<\/p>\n
ARTICLE 8<\/p>\n
MISCELLANEOUS<\/p>\n
Section 8.01 Notices. All notices, requests, consents and other
\ncommunications hereunder must be in writing and will be deemed to have been duly
\ngiven (a) when received if personally delivered or sent by facsimile, (b) one
\nBusiness Day after being sent by nationally recognized overnight delivery
\nservice, or (c) five Business Days after being sent by nationally registered or
\ncertified mail, return receipt requested, postage prepaid, and in each case
\naddressed as follows (any party by written notice to the other party in the
\nmanner prescribed by this section may change the address or the persons to whom
\nnotices thereof shall be directed):<\/p>\n
To Goodrich at:<\/p>\n
Goodrich Corporation
\n Four Coliseum Centre
\n 2730 West Tyvola Road
\n Charlotte, North Carolina 28217
\n Fax: (704) 423-7011
\n Attention: General Counsel<\/p>\n
with a copy to:<\/p>\n
Jones, Day, Reavis & Pogue
\n North Point
\n 901 Lakeside Avenue
\n Cleveland, Ohio 44114
\n Fax: (216) 579-0212
\n Attention: David P. Porter, Esq.<\/p>\n
29<\/p>\n
To EnPro or Coltec at:<\/p>\n
EnPro Industries, Inc. or Coltec Industries Inc
\n 5605 Carnegie Boulevard, Suite 500
\n Charlotte, North Carolina 28209-4674
\n Fax: (704) 731-1531
\n Attention: General Counsel<\/p>\n
with a copy to:<\/p>\n
Robinson, Bradshaw & Hinson P.A.
\n 101 North Tryon Street, Suite 1900
\n Charlotte, North Carolina 28246-1900
\n Fax: (704) 378-4000
\n Attention: Stephen M. Lynch, Esq.<\/p>\n
Section 8.02 Interpretation. The headings contained in this
\nAgreement are solely for convenience of reference and shall not be given any
\neffect in the construction or interpretation of this Agreement. Whenever the
\nword “including” is used in this Agreement, it shall be deemed to be followed by
\nthe words “without limitation.” Whenever a reference is made in this Agreement
\nto a “party” or “parties,” such reference shall be to a party or parties to this
\nAgreement unless otherwise indicated. The use of any gender herein shall be
\ndeemed to be or include the other genders and the use of the singular herein
\nshall be deemed to include the plural (and vice versa), wherever appropriate.
\nWhenever a reference is made in this Agreement to an Article, Section, Schedule
\nor Annex, such reference shall be to an Article or Section of, or a Schedule or
\nAnnex to, this Agreement unless otherwise indicated. The use of the words
\n“hereof” and “herein” and words of similar import shall refer to this entire
\nAgreement and not to any particular article, section, subsection, clause,
\nparagraph or other subdivision of this Agreement, unless the context clearly
\nindicates otherwise. Each party stipulates and agrees that the rule of
\nconstruction to the effect that any ambiguities are to be resolved against the
\ndrafting party shall not be employed in the interpretation of this Agreement to
\nfavor any party against the other, and that no party, including any drafting
\nparty, shall have the benefit of any legal presumption (including “meaning of
\nthe authors”) or the detriment of any burden of proof by reason of any ambiguity
\nor uncertain meaning contained in this Agreement.<\/p>\n
Section 8.03 Amendments; No Waivers.<\/p>\n
(a) Any provision of this Agreement may be amended or
\nwaived if, and only if, such amendment or waiver is in writing and signed, in
\nthe case of an amendment, by each party, or in the case of a waiver, by the
\nparty against whom the waiver is to be effective.<\/p>\n
(b) No failure or delay by any party in exercising any
\nright, power or privilege hereunder shall operate as a waiver thereof nor shall
\nany single or partial exercise thereof preclude any other or further exercise
\nthereof or the exercise of any other right, power or privilege.<\/p>\n
30<\/p>\n
Section 8.04 Nonexclusive Remedies. The rights and remedies herein
\nprovided shall be cumulative and not exclusive of any rights or remedies
\nprovided by Law.<\/p>\n
Section 8.05 Successors and Assigns. The provisions of this
\nAgreement shall be binding upon and inure to the benefit of the parties hereto
\nand their respective successors and assigns; provided, however, that no party
\nmay assign, delegate or otherwise transfer any of its rights or obligations
\nunder this Agreement without the prior written consent of the other parties,
\nwhich consent shall not be unreasonably withheld.<\/p>\n
Section 8.06 Third-Party Beneficiaries. Nothing contained in this
\nAgreement is intended to nor shall it confer upon any Person or entity, other
\nthan the parties hereto and their respective Subsidiaries, successors and
\npermitted assigns, any benefit, right or remedies under or by reason of this
\nAgreement, except that the provisions of Article 5 shall inure to the benefit of
\nthe Goodrich Indemnitees and the EnPro Indemnitees and the provisions of Article
\n6 shall inure to the benefit of the Goodrich Released Parties and the EnPro
\nReleased Parties.<\/p>\n
Section 8.07 Governing Law. This Agreement shall be construed in
\naccordance with and governed by the law of the State of New York, without regard
\nto the conflict of laws principles thereof.<\/p>\n
Section 8.08 Counterparts; Effectiveness. This Agreement may be
\nsigned in any number of counterparts, each of which shall be an original, with
\nthe same effect as if the signatures thereto and hereto were upon the same
\ninstrument.<\/p>\n
Section 8.09 Entire Agreement. This Agreement, the Ancillary
\nAgreements and the Transfer Documents constitute the entire understanding of the
\nparties with respect to the subject matter hereof and thereof and supersede all
\nprior agreements, understandings and negotiations, both written and oral,
\nbetween the parties with respect to the subject matter hereof and thereof. No
\nrepresentation, inducement, promise, understanding, condition or warranty not
\nset forth herein or in the Ancillary Agreements and the Transfer Documents has
\nbeen made or relied upon by any party. This Agreement is not intended to
\naddress, and should not be interpreted to address, the matters specifically and
\nexpressly covered by a Transfer Document or an Ancillary Agreement.<\/p>\n
Section 8.10 Severability. If any one or more of the provisions
\ncontained in this Agreement should be declared invalid, illegal or unenforceable
\nin any respect, the validity, legality and enforceability of the remaining
\nprovisions contained in this Agreement shall not in any way be affected or
\nimpaired thereby so long as the economic or legal substance of the transactions
\ncontemplated hereby is not affected in any manner materially adverse to any
\nparty. Upon such a declaration, the parties shall modify this Agreement so as to
\neffect the original intent of the parties as closely as possible in an
\nacceptable manner so that the transactions contemplated hereby are consummated
\nas originally contemplated to the fullest extent possible.<\/p>\n
Section 8.11 Termination. Notwithstanding any provision in this
\nAgreement to the contrary, this Agreement may be terminated and the Distribution
\nand the Aerospace Distribution amended, modified or abandoned at any time prior
\nto the Record Date, without penalty or liability, by and in the sole and
\nabsolute discretion of Goodrich by written notice to EnPro and Coltec and
\nwithout the approval of EnPro or Coltec.<\/p>\n
31<\/p>\n
Section 8.12 Survival. All covenants and agreements of the
\nparties contained in this Agreement shall survive the Aerospace Distribution
\nDate and the Distribution Date.<\/p>\n
Section 8.13 Expenses. Except as otherwise set forth in this
\nAgreement or any Ancillary Agreement, each party shall pay its own costs and
\nexpenses incurred (whether such costs and expenses are incurred prior to, on or
\nafter the Distribution Date), except as set forth on Schedule 8.13.<\/p>\n
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]<\/p>\n
32<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Distribution
\nAgreement to be duly executed by their respective authorized officers as of the
\ndate first above written.<\/p>\n
GOODRICH CORPORATION<\/p>\n
By: \/s\/ Terrence G. Linnert
\n ——————————————-
\n Name: Terrence G. Linnert
\n Title: Senior Vice President<\/p>\n
ENPRO INDUSTRIES, INC.<\/p>\n
By: \/s\/ Richard L. Magee
\n ——————————————-
\n Name: Richard L. Magee
\n Title: Senior Vice President, Secretary
\n and General Counsel<\/p>\n
COLTEC INDUSTRIES INC<\/p>\n
By: \/s\/ John R. Mayo
\n ——————————————-
\n Name: John R. Mayo
\n Title: Assistant Secretary<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7453,7661],"corporate_contracts_industries":[9459,9476],"corporate_contracts_types":[9622,9628],"class_list":["post-43380","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-enpro-industries-inc","corporate_contracts_companies-goodrich-corp","corporate_contracts_industries-manufacturing__rubber","corporate_contracts_industries-aerospace__space","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43380","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43380"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43380"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43380"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43380"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}