EXHIBIT 10(OO)
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of May 31, 2002 (this "Agreement"),
by and among Goodrich Corporation, a New York corporation ("Goodrich"), EnPro
Industries, Inc., a North Carolina corporation ("EnPro"), Coltec Industries Inc,
a Pennsylvania corporation ("Coltec"), and Coltec Capital Trust, a Delaware
statutory trust ("Coltec Capital Trust").
W I T N E S S E T H
WHEREAS, Goodrich contemplates spinning off its EnPro subsidiary, of
which Coltec will be a subsidiary, through a distribution of EnPro stock to
Goodrich shareholders (the "Distribution");
WHEREAS, Coltec owns all of the common equity securities of Coltec
Capital Trust, which is the issuer of a class of 5 1/4% Convertible Preferred
Securities - Term Income Deferred Equity Securities ("TIDES")*;
WHEREAS, in connection with the acquisition of Coltec by Goodrich,
Goodrich executed a Guarantee Agreement, dated as of July 12, 1999 (the
"Goodrich Guarantee Agreement"), pursuant to which Goodrich guaranteed certain
obligations of Coltec and Coltec Capital Trust under the TIDES and related
agreements, and executed a Supplemental Indenture, dated as of July 12, 1999
(the "Supplemental Indenture"), pursuant to which the TIDES became convertible
into the common stock of Goodrich, par value $5 per share ("Goodrich Common
Stock");
WHEREAS, prior to the consummation of the Distribution and in
connection therewith, EnPro will execute a Guarantee Agreement, dated as of May
31, 2002 (the "EnPro Guarantee Agreement") pursuant to which EnPro will
guarantee certain obligations of Coltec and Coltec Capital Trust under the TIDES
and related agreements; and
WHEREAS, the parties agree that, subsequent to the Distribution, EnPro,
Coltec, and Coltec Capital Trust shall be exclusively responsible for the
fulfillment of all obligations of Coltec and Coltec Capital Trust under the
TIDES and the related agreements and that Goodrich shall be held harmless from
any liabilities arising under the TIDES and the related agreements.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, and intending to be
legally bound, the parties hereto agree as follows:
1. Indemnification. Subject to the other provisions of this Agreement
and subject to and conditioned upon the consummation of the Distribution, EnPro,
Coltec, and Coltec
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* The terms Term Income Deferrable Equity Securities and TIDES are registered
service marks of Credit Suisse First Boston Corporation.
Capital Trust (collectively, the "Indemnifying Parties") shall indemnify
Goodrich, its affiliates and each of its officers, directors, employees, agents,
representatives, successors and assigns (collectively, the "Indemnified
Parties") against and hold such Indemnified Parties harmless from any and all
losses, liabilities, claims, damages, costs, expenses, penalties and fines
(including, without limitation, amounts paid in settlement, reasonable costs of
investigation and reasonable attorneys' fees and expenses) that any of the
Indemnified Parties are required to pay or incur pursuant to the Goodrich
Guarantee Agreement or the Supplemental Indenture. For the purpose of the
preceding sentence, in the event that Goodrich is required to issue Goodrich
common stock as a result of the conversion of a TIDES, the cost to Goodrich of
such issuance shall be deemed to be the fair market value of such common stock
on the date of such conversion.
2. Indemnification Procedure.
(a) Promptly after receipt by an Indemnified Party of notice by a third
party of any complaint or the commencement of any action or proceeding with
respect to which indemnification may be sought hereunder, such Indemnified Party
will notify the Indemnifying Parties of such complaint or of the commencement of
such action or proceeding. The Indemnifying Parties may, at their discretion,
assume the defense of such action or proceeding, including the employment of
counsel and the payment of the fees and disbursements of such counsel. In the
event, however, that (i) the Indemnifying Parties fail to assume the defense of
the action or proceeding in a timely manner or (ii) the nature of any claim
presents a conflict of interest between the Indemnified Party and the
Indemnifying Parties, then such Indemnified Party may assume and control its own
defense, and the Indemnifying Party shall be liable for all reasonable costs and
expenses paid or incurred by the Indemnified Party in connection therewith. In
any action or proceeding with respect to which indemnification may be sought
hereunder, the Indemnified Parties or the Indemnifying Parties, whichever are
not assuming the defense of such action, as the case may be, will have the right
to participate in such litigation and to retain its own counsel at such party's
own expense. The Indemnified Parties or the Indemnifying Parties, as the case
may be, shall at all times use reasonable efforts to keep the Indemnifying
Parties or the Indemnified Parties, as the case may be, reasonably apprised of
the status of the defense of any claim the defense of which they are
maintaining.
(b) No Indemnified Party may settle or compromise any claim with
respect to which indemnification is being sought hereunder without the prior
written consent of the Indemnifying Parties, which consent shall not be
unreasonably withheld; provided, however, that no such consent shall be required
in the case of any performance by Goodrich of its obligations under the Goodrich
Guarantee Agreement. The Indemnifying Parties may not, without the prior written
consent of the Indemnified Parties, settle or compromise or consent to the entry
of any judgment in any claim with respect to which indemnification is being
sought hereunder unless such settlement, compromise or consent includes an
unconditional release of the Indemnified Party from all liability arising out of
such claim.
(c) In the event that an Indemnified Party shall claim a right to
payment pursuant to this Agreement, such Indemnified Party shall send written
notice of such claim to the Indemnifying Parties. Such notice shall specify the
basis for such claim.
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3. Representations and Warranties of the Indemnifying Parties. The
Indemnifying Parties hereby represent and warrant to Goodrich that this
Agreement has been duly authorized, executed and delivered by the Indemnifying
Parties and is the legal, valid and binding agreement of the Indemnifying
Parties, enforceable against the Indemnifying Parties in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether in equity
or at law).
4. Representations and Warranties of Goodrich. Goodrich hereby
represents and warrants to the Indemnifying Parties that this Agreement has been
duly authorized, executed and delivered by Goodrich, and is the legal, valid and
binding agreement of Goodrich, enforceable against Goodrich in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting the rights and remedies of
creditors generally and to general principles of equity (regardless of whether
in equity or at law).
5. Coltec Call Rights on Goodrich Stock.
(a) For the purposes of this Agreement:
(i) "Closing Price" for each Trading Day shall be the
last reported sale price regular way, during regular trading hours, or, in case
no such reported sale takes place on such day, the average of the closing bid
and asked prices regular way, during regular trading hours, for such day, in
each case on the New York Stock Exchange or, if not listed or quoted on such
market, on the principal national securities exchange on which the shares of the
subject security are listed or admitted to trading or, if not listed or admitted
to trading on a national securities exchange, the last sale price regular way
for the subject security as published by the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") or, if such last sale price is not
so published by NASDAQ or if no such sale takes place on such day, the mean
between the closing bid and asked prices for the subject security as published
by NASDAQ. If the subject security is not publicly held or so listed or publicly
traded, "Closing Price" shall mean the fair market value per share as determined
in good faith by the Board of Directors of Goodrich or, if such determination
cannot be made, by a nationally recognized independent investment banking firm
selected in good faith by the Board of Directors of Goodrich.
(ii) "Current Market Price" per share of the subject
security on any date shall be deemed to be the Closing Price on the Trading Day
immediately preceding such date.
(iii) "Trading Day" shall mean a day on which the
securities exchange utilized for the purpose of calculating the Closing Price
shall be open for business or, if the shares of the subject security shall not
be listed on such exchange during such period, a day on which The Nasdaq Stock
Market is open for business.
(b) In the event that Coltec or EnPro become obligated (either
directly as a result of their guarantees of the TIDES obligations or indirectly
through an obligation of Coltec
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Capital Trust) to supply shares of Goodrich Common Stock to a holder of TIDES (a
"Holder") as a result of the conversion of a TIDES subsequent to the
consummation of the Distribution, and it is not reasonably practicable for
Coltec or EnPro, as the case may be, to obtain the necessary shares of Goodrich
Common Stock through any other means, Coltec or EnPro, as the case may be, shall
have the right to purchase from Goodrich such shares of Goodrich Common Stock at
a price per share (the "Exercise Price") equal to the Current Market Price of
Goodrich Common Stock on the date that the Conversion Agent received the Notice
of Conversion from the Holder (as such terms are defined in the TIDES
Indenture).
(c) Coltec or EnPro, as the case may be, may exercise its call rights pursuant
to this Section 6 on one or more occasions by completing an Election to
Purchase, in substantially the form attached hereto, by duly executing the same,
and by delivering the same, together with payment in full of the Exercise Price
multiplied by the number of shares of Goodrich Common Stock being purchased, in
lawful money of the United States of America, in cash or by certified or
official bank check or by bank wire transfer, to Goodrich.
(d) Upon receipt of the Election to Purchase and the payment specified by
subsection (c), Goodrich shall, as soon as reasonably practicable, issue the
shares of Goodrich Common Stock specified on the Election to Purchase, such
shares to be registered in the name of the converting Holder as such name is
designated on the Election to Purchase, and such shares to be validly registered
under the Securities Exchange Act of 1933 under a then-effective registration
statement.
6. Goodrich Right to Make Payments.
(a) In the event that Coltec, or EnPro pursuant to its obligations
under the EnPro Guarantee Agreement, intends not to make any payment to Coltec
Capital Trust that Coltec or EnPro, as the case may be, is obligated to make, or
fails to make any such payment (and such failure or intended omission gives or
will give rise to any claim by Coltec Capital Trust or any other person against
Goodrich pursuant to the Goodrich Guarantee Agreement), Coltec or EnPro, as the
case may be, shall notify Goodrich of such intention or failure as soon as
reasonably practicable. Goodrich shall have the option, but not the obligation,
to make any payment to Coltec Capital Trust that Coltec or EnPro, as the case
may be, failed to make. The Indemnifying Parties shall be obligated to reimburse
Goodrich for any costs and expenses incurred by Goodrich pursuant to this
Section 6(a), including the amount of any payments made by Goodrich to Coltec
Capital Trust.
(b) In the event that Coltec Capital Trust intends not to make any
payment or distribution to the Holders that Coltec Capital Trust will be
obligated to make, or fails to make any such obligatory payment or distribution,
Coltec Capital Trust shall notify Goodrich of such intention or failure as soon
as reasonably practicable. Goodrich shall have the option, but not the
obligation, to make any payment or distribution to the Holders that Coltec
Capital Trust failed to make. The Indemnifying Parties shall be obligated to
reimburse Goodrich for any costs and expenses incurred by Goodrich pursuant to
this Section 6(b), including the amount of any payments or distributions made by
Goodrich to the Holders.
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7. Notices. Unless specified otherwise in this Agreement, all
requests, notices or other communications hereunder shall be in writing and
shall be given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by courier service, by telecopy or telegram, or
upon electronic transmission, if sent via facsimile (with confirmation of
receipt without error), to the respective Parties at the following addresses:
(a) if to Goodrich:
Goodrich Corporation
Four Coliseum Centre
2730 West Tyvola Road
Charlotte, North Carolina 28217
Facsimile: (704) 423-7059
Attention: Treasurer
(b) if to any of the Indemnified Parties:
EnPro Industries, Inc.
5605 Carnegie Boulevard, Suite 500
Charlotte, North Carolina 28209-4674
Fax: (704) 731-1531
Attention: General Counsel and Treasurer
with a copy to:
Robinson, Bradshaw & Hinson P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246-1900
Fax: (704) 378-4000
Attention: Stephen M. Lynch, Esq.
8. Miscellaneous. Nothing in this Agreement is intended to or shall
confer upon anyone other than the parties hereto any legal or equitable right,
remedy or claim. This Agreement shall be governed by, and its provisions
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be wholly performed within such state and may be modified
only in writing signed by each of the parties hereto. This Agreement may be
executed simultaneously in two or more counterparts, each of which shall be
deemed an original, and all such counterparts shall constitute one and the same
instrument. Paragraph headings contained in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation of
any term or provision hereof.
9. Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
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10. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to the
choice of law principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
GOODRICH CORPORATION
By: /s/ Scott E. Kuechle
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Name: Scott E. Kuechle
Title: Vice President & Treasurer
ENPRO INDUSTRIES, INC.
By: /s/ Richard L. Magee
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Name: Richard L. Magee
Title: Senior Vice President & Secretary
COLTEC INDUSTRIES INC
By: /s/ Scott E. Kuechle
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Name: Scott E. Kuechle
Title: Vice President & Treasurer
COLTEC CAPITAL TRUST
By: /s/ Kenneth L. Wagner
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Name: Kenneth L. Wagner
Title: Trustee
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FORM OF ELECTION TO PURCHASE
Goodrich Corporation
Four Coliseum Centre
2730 West Tyvola Road
Charlotte, North Carolina 28217
Attn: _________________
Reference is made to the Indemnification Agreement, dated as of January
__, 2002, by and among Goodrich Corporation, EnPro Industries, Inc., and Coltec
Industries Inc (the "Agreement"). Unless otherwise defined, all capitalized
terms herein shall have the meanings ascribed thereto in the Agreement.
The undersigned hereby irrevocably elects to exercise the right to
purchase ______ shares of Goodrich Common Stock in connection with the
conversion of _______ TIDES by the Holder identified below. The applicable
Notice of Conversion was received by the Conversion Agent (as such terms are
defined in the TIDES Indenture) on ______________. Accordingly, the Exercise
Price is $_____, and the sum of $________ is being contemporaneously delivered
to Goodrich in accordance with the terms of the Agreement. The undersigned
certifies that it is not reasonably practicable for the undersigned to obtain
the necessary shares of Goodrich Common Stock through any means other than this
Election to Purchase, and understands that the shares of Goodrich Common Stock
purchased hereby will be issued in the name of the Holder identified below.
ENPRO INDUSTRIES, INC.
By:
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Name:
Title:
CONVERTING HOLDER
(please type name and address, including zip code and social security or other
identifying number of the converting Holder, as such information was set forth
in such Holder's Notice of Conversion)
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