Current Report Filing (8-k)

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM 8-K

 

Current Report

Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):  September 22, 2015

 

SPX FLOW, INC.

(Exact name of registrant as specified in its charter)

 

 

13320 Ballantyne Corporate Place

Charlotte, North Carolina 28277

(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code  (704) 752-4400

 

NOT APPLICABLE

(Former name or former address if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the obligation of the registrant under any of the following provisions:

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

Agreements with SPX Corporation

 

At 11:59 p.m., New York City time, on September 26, 2015 (the “Distribution Date”), SPX Corporation (“SPX”) completed the previously announced tax-free spin-off (also referred to herein as the “Spin-Off”) of its Flow business, comprising is Flow Technology reportable segment, its Hydraulic Technology business and certain of its subsidiaries, into a new standalone, publicly traded company, SPX FLOW, Inc. (“SPX FLOW”), and distributed, on a pro rata basis, all of the shares of SPX FLOW common stock to SPX’s stockholders of record as of 5:00 p.m., New York City time, on September 16, 2015 (the “Record Date”). To effect the Spin-Off, SPX distributed to its stockholders one share of SPX FLOW common stock, par value $0.01 per share, for every one share of SPX common stock (the “Distribution”) outstanding as of the Record Date.

 

In connection with the Distribution, SPX FLOW entered into definitive agreements with SPX that, among other things, set forth the terms and conditions of the Distribution and provide a framework for SPX FLOW’s relationship with SPX after the Distribution, including the following agreements:

 

·                  Separation and Distribution Agreement;

 

·                  Transition Services Agreement;

 

·                  Tax Matters Agreement;

 

·                  Employee Matters Agreement; and

 

·                  Trademark License Agreement.

 

A summary of the material terms of these agreements can be found in the Information Statement of SPX FLOW, dated September 8, 2015 (the “Information Statement”), filed as Exhibit 99.1 SPX FLOW’s Amendment No. 3 to the Registration Statement on Form 10 dated September 8, 2015, filed with the Securities and Exchange Commission on September 8, 2015 (File No. 001-37393), under “Certain Relationships and Related Party Transactions—Agreements with SPX Related to the Spin-Off,” which summary is incorporated herein by reference.  The summary is qualified in its entirety by reference to the Separation and Distribution Agreement, Transition Services Agreement, Tax Matters Agreement, Employee Matters Agreement and Trademark License Agreement, filed as Exhibits 2.1 and 10.1, 10.2, 10.3 and 10.4, respectively, hereto, each of which is incorporated herein by reference.

 

Substitution as Obligor under the Indenture and the 2017 Notes

 

On September 22, 2015, in connection with the completion of the transfer of the SPX’s Flow Technology reportable segment, along with its hydraulics technologies business to SPX FLOW (the “Flowco Asset Transfer”), as part of the Spin-Off, SPX FLOW entered into a Third Supplemental Indenture (the “Third Supplemental Indenture”) to the Indenture (as defined below) and issued substitute global notes in connection with SPX FLOW’s substitution for SPX as the obligor of $600.0 aggregate principal amount of 6.875% Senior Notes due 2017 (the “2017 Notes”). A copy of the Third Supplemental Indenture is attached hereto as Exhibit 4.1 and is incorporated herein by reference. The 2017 Notes were issued pursuant to the terms of the Indenture, dated as of August 10, 2010 (as amended and supplemented, the “Indenture”).

 

The 2017 Notes mature in August 2017. The interest payment dates for the 2017 Notes are March 1 and September 1 of each year. The 2017 Notes are redeemable, in whole or in part, at any time prior to maturity at a price equal to 100% of the principal amount thereof plus an applicable premium, plus accrued and unpaid interest. If SPX FLOW experiences certain types of change of control transactions, SPX FLOW must offer to repurchase the 2017 Notes at 101% of the aggregate principal amount of the notes repurchased, plus accrued and unpaid interest. The 2017 Notes are unsecured and rank equally with all of SPX FLOW’s existing and future unsubordinated unsecured senior indebtedness, but are effectively junior to SPX FLOW’s senior credit facilities. The Indenture contains covenants that, among other things, limit SPX FLOW’s ability to incur liens, enter into sale and leaseback transactions and consummate some mergers. Payment of the principal, premium, if any, and interest on the 2017 Notes will be guaranteed on a senior unsecured basis by SPX FLOW’s domestic subsidiaries.

 

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On September 24, 2015, SPX FLOW, and SPX Flow Holdings, Inc., SPX Flow Technology Systems, Inc., SPX Flow US, LLC, Corporate Place LLC,  and Delaney Holdings Co. (collectively, the “Guarantors) and U.S. Bank National Association, as trustee, executed the Fourth Supplemental Indenture (the “Fourth Supplemental Indenture”) to the Indenture, pursuant to which the Guarantors were added as subsidiary guarantors under the Indenture.  A copy of the Fourth Supplemental Indenture is attached hereto as Exhibit 4.2 and is incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The information provided under Item 1.01 above is incorporated by reference into this Item 2.03.

 

Item 3.03 Material Modification to Rights of Security Holders.

 

The information provided under Item 5.03 below is incorporated herein by reference into this Item 3.03.

 

Item 5.01 Changes in Control of Registrant.

 

The information provided under Item 1.01 above is incorporated herein by reference into this Item 5.01.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Appointment and Resignation of Directors

 

On September 11, 2015, when the SPX FLOW Registration Statement on Form 10 was declared effective by the Securities and Exchange Commission, the members of the Board of Directors of SPX FLOW (the “Board”) consisted of Jeremy W. Smeltser, Stephen A. Tsoris and Stephen R. Winslow.

 

Effective upon completion of the Spin-Off at 11:59 p.m., New York City time, on September 26, 2015, the size of the Board was expanded from three to seven and Jeremy W. Smeltser, Stephen A. Tsoris and Stephen R. Winslow resigned from the Board (the “Resignations”). Effective upon completion of the Spin-Off and immediately after the expansion in the size of the Board and the Resignations, and to fill the vacancies created thereby, Christopher J. Kearney, Anne K. Altman, Patrick D. Campbell, Emerson U. Fullwood, Robert F. Hull, Jr., Terry S. Lisenby and David V. Singer were appointed to the Board. Effective as of his appointment to the Board, Mr. Kearney was appointed to serve as Chairman of the Board. Effective as of his appointment to the Board, Mr. Fullwood was appointed to serve as Lead Independent Director of the Board.

 

Biographical information for each member of the Board can be found in the Information Statement under the section entitled “Management — Our Board of Directors” which section is incorporated by reference into this Item 5.02.

 

The Board of SPX FLOW is currently constituted into three classes, as follows:

 

·                  Class I: Anne K. Altman and Patrick D. Campbell serve in the first class of directors of the Board, whose terms expire at the first annual meeting of SPX FLOW stockholders following the Spin-Off;

 

·                  Class II: Robert F. Hull, Jr. and David V. Singer serve in the second class of directors of the Board, whose terms expire at the second annual meeting of the SPX FLOW stockholders following the Spin-Off; and

 

·                  Class III: Christopher J. Kearney, Emerson U. Fullwood and Terry S. Lisenby serve in the third class of directors of the Board, whose terms expire at the third annual meeting of SPX FLOW stockholders following the Spin-Off.

 

Also, in connection with the Spin-Off, effective September, 2015:

 

·                  Ms. Altman, Mr. Campbell, Mr. Fullwood, Mr. Hull, Jr., Mr. Lisenby and Mr. Singer were appointed as members of the Audit Committee of the Board. Mr. Lisenby was appointed the Chair of the Audit Committee. The Board has determined that each of the members of the Audit Committee are independent under SEC rules and New York Stock Exchange (“NYSE”) listing standards, are financially literate under

 

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NYSE listing standards applicable to audit committee members and that each qualifies as an “audit committee financial expert” for purposes of the rules of the SEC.

 

·                  Mr. Campbell, Mr. Fullwood and Mr. Hull, Jr., each of whom has been determined by the Board to be independent under NYSE listing standards, were appointed as members of the Nominating and Corporate Governance Committee of the Board. Mr. Campbell was appointed the Chair of the Nominating and Corporate Governance Committee.

 

·                  Mr. Fullwood, Mr. Lisenby and Mr. Singer, each of whom has been determined by the Board to be independent under SEC rules and NYSE listing standards applicable to compensation committee members, were appointed as members of the Compensation Committee of the Board. Mr. Fullwood was appointed the Chair of the Compensation Committee.

 

Each of the non-employee directors of SPX FLOW will receive compensation for their service as a director or committee member in accordance with plans and programs more fully described in the Information Statement under the heading “Management — Director Compensation,” which is incorporated by reference into this Item 5.02.

 

There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which such individuals were selected as directors. There are no transactions involving any of the individuals listed above that would be required to be reported under Item 404(a) of Regulation S-K.

 

Appointment of Executive Officers

 

In connection with the Spin-Off, on September 26, 2015, the following individuals became executive officers of SPX FLOW as set forth in the table below:

 

Name		Position
Christopher J. Kearney		Chairman, President and Chief Executive Officer
Jeremy W. Smeltser		Vice President and Chief Financial Officer
Stephen A. Tsoris		Vice President, Secretary, and General Counsel
Robert B. Foreman		Executive Vice President
David A. Kowalski		President, Global Manufacturing Operations
J. Michael Whitted		Vice President, Corporate Development
Marc G. Michael		President, Food and Beverage
Anthony A. Renzi		President, Power and Energy
David J. Wilson		President, Industrial
Belinda G. Hyde		Vice President and Chief Human Resources Officer
Kevin J. Eamigh		Chief Information Officer and Vice President, Global Business Services

 

Stephen A. Tsoris was previously appointed as Vice President, Secretary, and General Counsel of SPX FLOW on September 21, 2015.

 

Biographical information on each of the executive officers can be found in the Information Statement under the section entitled “Management—Our Executive Officers,” which is incorporated by reference into this Item 5.02.

 

Compensation Plans

 

Adoption of the SPX FLOW Stock Compensation Plan

 

On September 23, 2015, the Board adopted the SPX FLOW Stock Compensation Plan (the “Stock Plan”), which was been approved by SPX as SPX FLOW’s sole shareholder, and the Stock Plan became effective as of September 23, 2015. The persons who are eligible to receive grants of awards under the Stock Plan are employees (including officers who are employees) or directors of, or individual consultants or independent contractors who provide services to, SPX FLOW or its subsidiaries.  The Stock Plan will be administered by the Compensation Committee, or a delegate of the Compensation Committee, or the Board itself, although it is expected that the Compensation Committee will generally serve as the administrator.  Among other things, the Compensation Committee, in its discretion, selects the participants to whom awards may be granted, the time or times at which such awards are granted, and the terms of such awards, including the type of award to be granted and the number of shares subject to each award. The Stock Plan provides that the Compensation Committee may award to such eligible recipients as it may determine from time to time the following awards: stock options, stock appreciation rights, restricted stock, restricted stock units and performance units. The Stock Plan also provides that certain awards may be granted under the Stock Plan in connection with the adjustment and replacement of certain awards previously granted by SPX pursuant to its equity plan (the “Replacement Awards”) in accordance with the terms of the Employee Matters Agreement.  Subject to the adjustment clauses in the Stock Plan, the maximum aggregate number of shares of SPX FLOW common stock that may be subject to awards granted under the Stock Plan is 3,000,000 plus the number of shares of SPX FLOW common stock awarded in connection with Replacement Awards.

 

The foregoing description of the Stock Plan is not complete and is qualified in its entirety by reference to the full text of the Stock Plan and the forms of award agreements related to the Stock Plan, which are filed as Exhibit 10.5, 10.6, 10.7 and 10.8, respectively, to this Current Report on Form 8-K and incorporated herein by reference.

 

Adoption of SPX FLOW Executive Annual Bonus Plan

 

On September 23, 2015, the Board adopted the SPX FLOW Executive Annual Bonus Plan (the “Executive Bonus Plan”), which was approved by SPX as SPX FLOW’s sole shareholder, and the Executive Bonus Plan became effective as of September 23, 2015.  SPX FLOW’s Chief Executive Officer, each of its other executive officers and each other SPX FLOW employee that the Compensation Committee determines may be a “covered employee” within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended, are eligible to participate in the Executive Bonus Plan. The Executive Bonus Plan is administered by the Compensation Committee, or such other committee that may be appointed by the Board.  Generally, the Executive Bonus Plan provides that participants will be eligible for a cash award for each performance year of participation, with the amount of the award, if any, determined based on the achievement of performance goals established for the applicable performance period, with no individual bonus to exceed $4,000,000. The Compensation Committee, in its discretion, may reduce the amount of an award granted under the Executive Bonus Plan.

 

The foregoing description of the Executive Bonus Plan is not complete and is qualified in its entirety by reference to the full text of the Executive Bonus Plan, which is filed as Exhibit 10.9 to this Current Report on Form 8-K and incorporated herein by reference.

 

Adoption of the SPX FLOW Supplemental Retirement Plan for Top Management

 

On September 23, 2015, the Board adopted the SPX FLOW Supplemental Retirement Plan for Top Management (the “TMP”), which became effective on September 26, 2015. The TMP is a nonqualified defined benefit plan that provides individuals designated by the Compensation Committee, including each of our named executive officers, with retirement benefits determined by using a benefits formula based on a percentage of the participant’s final pensionable earnings (highest three of last ten calendar years of employment, subject to certain adjustments) and the number of years the participant has participated in the SPX Corporation Supplemental Retirement Plan for Top Management or the TMP, as applicable.  The accrual rate for the benefit under the TMP varies based on when the participant commenced participation in the SPX Corporation Supplemental Retirement Plan for Top Management or the TMP, as applicable.

 

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The foregoing description of the TMP is not complete and is qualified in its entirety by reference to the full text of the TMP, which is filed as Exhibit 10.10 to this Current Report on Form 8-K and incorporated herein by reference.

 

Adoption of the SPX Flow Life Insurance Plan for Key Managers

 

On September 23, 2015, the Board adopted the SPX FLOW Life Insurance Plan for Key Managers (the “Life Insurance Plan”), which became effective on September 26, 2015. The Life Insurance Plan provides enhanced life insurance benefits for certain key managers of SPX FLOW designated by the Compensation Committee.  Participants are eligible for life insurance benefits in the event of their death (i) following retirement from SPX FLOW or (ii) during employment with SPX FLOW.  If a participant becomes disabled prior to retirement, the Compensation Committee, in its discretion, may allow a participant to continue to participate in the Life Insurance Plan.  If a participant’s employment with SPX FLOW terminates for any other reason, no payments will be due under the Life Insurance Plan.  Benefits under the Life Insurance Plan are reduced by death benefits paid to the applicable participant under any group life insurance policy paid for by SPX FLOW.

 

The foregoing description of the Life Insurance Plan is qualified in its entirety by reference to the text of the Life Insurance Plan, which is attached as Exhibit 10.11 hereto and incorporated herein by reference.

 

Adoption of SPX FLOW Supplemental Retirement Savings Plan

 

On September 23, 2015, the Board adopted the SPX FLOW Supplemental Retirement Savings Plan (the “SRSP”), which became effective on September 25, 2015. The SRSP is a nonqualified defined contribution plan that allows our named executive officers and other senior level management to make pre-tax deferrals in excess of those permitted by the SPX FLOW Retirement Savings Plan (the “401(k) Plan”).  The SRSP allows eligible participants to defer up to 50% of their base compensation (excluding bonuses) and up to 100% of their annual bonus into the SRSP.  A company match will be made to the SRSP after the maximum company match is made under the 401(k) Plan and is allocated to the fund(s) selected by the participant.  Each participant is fully vested in all contributions, including matching contributions, at all times.

 

The foregoing description of the SRSP is qualified in its entirety by reference to the text of the SRSP, which is attached as Exhibit 10.12 hereto and incorporated herein by reference.

 

Adoption of SPX FLOW Executive Long-Term Disability Plan

 

On September 23, 2015, the Board adopted the SPX FLOW Executive Long-Term Disability Plan (the “Executive LTD Plan”) which became effective on September 27, 2015.  The benefit under the Executive LTD Plan, when combined with the benefit under the group long-term disability plan offered to most of our employee population, equals approximately 60% of the participant’s base salary on an after-tax basis in the event the participant becomes disabled while employed by SPX FLOW.  The monthly benefits under the Executive LTD Plan continue until the earlier of (i) the end of the participant’s disability (as defined in the Executive LTD Plan) or (ii) age 65.  The Executive LTD Plan benefit is offset by other income benefits including company-paid retirement benefits.

 

The foregoing description of the Executive LTD Plan is qualified in its entirety by reference to the text of the Executive LTD Plan, which is attached as Exhibit 10.13 hereto and incorporated herein by reference.

 

Adoption of the Assignment and Assumption of and Amendment to Employment Agreement

 

On September 23, 2015, the Board adopted a form of Assignment and Assumption of and Amendment to Employment Agreement (the “EA Assumption Agreement”) to be entered into with each of our named executive officers.  The EA Assumption Agreement provides that, effective as of the Distribution Date, SPX FLOW will assume all of SPX’s right, title and interest in, and agrees to pay, perform and discharge all of the covenants, conditions, obligations and liabilities of SPX, in all cases under the employment agreements entered into between each of our named executive officers and SPX.  The EA Assumption Agreement also provides for certain amendments to the original employment agreement, primarily to reflect SPX FLOW benefit and compensation plans.  The terms of the employment agreements with our named executive officers that are being assigned and assumed pursuant to the EA Assumption Agreement are more fully described in the Information Statement under the heading “Executive Compensation— Historical Compensation of Executive Officers Prior to the Spin-Off,” which is incorporated by reference into this Item 5.02.

 

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The foregoing description of the EA Assumption Agreement is qualified in its entirety by reference to the text of the form of EA Assumption Agreement, which is attached as Exhibit 10.14 hereto and incorporated herein by reference.

 

Adoption of the Assignment and Assumption of and Amendment to Change of Control Agreement

 

On September 23, 2015, the Board adopted a form of Assignment and Assumption of and Amendment to Change of Control Agreement (the “COC Assumption Agreement”) to be entered into with each of our named executive officers, as well as certain of our other key executives.  The COC Assumption Agreement provides, effective as of the Distribution Date, that SPX FLOW will assume all of SPX’s right, title and interest in, and agrees to pay, perform and discharge all of the covenants, conditions, obligations and liabilities of SPX, in all cases under the change of control agreements entered into between each of our named executive officers and certain other key executives and SPX.  The COC Assumption Agreement also provides for certain amendments to the original change of control agreement, primarily to reflect SPX FLOW benefit and compensation plans.  The terms of the change of control agreements with our named executive officers that are being assigned and assumed pursuant to the COC Assumption Agreement are more fully described in the Information Statement under the heading “Executive Compensation— Historical Compensation of Executive Officers Prior to the Spin-Off,” which is incorporated by reference into this Item 5.02.

 

The foregoing description of the COC Assumption Agreement is qualified in its entirety by reference to the text of the form of COC Assumption Agreement, which is attached as Exhibit 10.15 hereto and incorporated herein by reference.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal year.

 

In connection with the Spin-Off, on September 21, 2014, SPX FLOW adopted its Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate of Incorporation”) and Amended and Restated Bylaws (the “Amended and Restated Bylaws”).  The Amended and Restated Certificate of Incorporation increased the number of authorized shares of SPX FLOW common stock to 300,000,000, in order to facilitate the distribution of the shares of SPX FLOW common stock to holders of SPX common stock. A summary of the material provisions of each of the

 

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Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws is included under the section “Description of Capital Stock” in the Information Statement, which section is incorporated herein by reference. This description is qualified in its entirety by reference to the Amended and Restated Certificate of Incorporation filed as Exhibit 3.1 and the Amended and Restated Bylaws filed as Exhibit 3.2, respectively, to this Current Report on Form 8-K, which are incorporated herein by reference.

 

Item 5.07 Submission of Matters to a Vote of Security Holders.

 

On September 21, 2015, SPX, the sole stockholder of SPX FLOW, executed a written consent of stockholders in lieu of an annual meeting.  SPX, as the sole stockholder of SPX FLOW, voted all 100 shares held by it in favor of (a) the adoption of the Amended and Restated Certificate of Incorporation, (b) electing the individuals listed under Item 5.02 above, which is incorporated herein by reference, to be members of the Board, and (c) the adoption of the SPX FLOW Stock Compensation Plan and the SPX FLOW Executive Annual Bonus Plan.

 

Item 8.01 Other Events

 

SPX FLOW issued a press release on September 28, 2015 announcing that it completed the Spin-Off, a copy of which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.

 

In connection with the Spin-Off, the Board adopted Corporate Governance Guidelines, a copy of which is available under the Investor Relations section of the SPX FLOW website at www.spxflow.com.

 

Item 9.01    Financial Statements and Exhibits

 

(d) Exhibits

 

Exhibit Number		Description
2.1		Separation and Distribution Agreement, dated as of September 22, 2015, by and between SPX FLOW, Inc. and SPX Corporation
3.1		Amended and Restated Certificate of Incorporation of SPX FLOW, Inc.
3.2		Amended and Restated Bylaws of SPX FLOW, Inc.
4.1		Third Supplemental Indenture, dated as of September 22, 2015, by and between SPX FLOW, Inc. and U.S. Bank National Association, as Trustee, to the Indenture dated as of August 10, 2010
4.2		Fourth Supplemental Indenture, dated as of September 24, 2015, by and among SPX FLOW, Inc., the Guarantors (as defined herein) and U.S. Bank National Association, as Trustee, to the Indenture dated as of August 10, 2010
10.1		Transition Services Agreement, dated as of September 26, 2015, by and between SPX FLOW, Inc. and SPX Corporation
10.2		Tax Matters Agreement, dated as of September 26, 2015, by and between SPX FLOW, Inc. and SPX Corporation
10.3		Employee Matters Agreement, dated as of September 26, 2015, by and between SPX FLOW, Inc. and SPX Corporation
10.4		Trademark License Agreement, dated as of September 26, 2015, by and between SPX FLOW, Inc. and SPX Corporation
10.5		SPX FLOW Stock Compensation Plan
10.6		Form of SPX FLOW Stock Option Award Agreement
10.7		Form of SPX FLOW Restricted Stock Unit Award Agreement
10.8		Form of SPX FLOW Restricted Stock Award Agreement
10.9		SPX FLOW Executive Annual Bonus Plan
10.10		SPX FLOW Supplemental Retirement Plan for Top Management
10.11		SPX FLOW Life Insurance Plan for Key Managers
10.12		SPX FLOW Supplemental Retirement Savings Plan
10.13		SPX FLOW Executive Long-Term Disability Plan
10.14		Form of Assignment and Assumption of and Amendment to Employment Agreement
10.15		Form of Assignment and Assumption of and Amendment to Change of Control Agreement

 

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99.1

Press Release of SPX FLOW, Inc., dated September 28, 2015

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

	SPX FLOW, INC.
Date: September 28, 2015	By:	/s/ Stephen A. Tsoris
		Stephen A. Tsoris
		Vice President, Secretary and General Counsel

 

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EXHIBIT INDEX

 

Exhibit Number		Description
2.1		Separation and Distribution Agreement, dated as of September 22, 2015, by and between SPX FLOW, Inc. and SPX Corporation
3.1		Amended and Restated Certificate of Incorporation of SPX FLOW, Inc.
3.2		Amended and Restated Bylaws of SPX FLOW, Inc.
4.1		Third Supplemental Indenture, dated as of September 22, 2015, by and between SPX FLOW, Inc. and U.S. Bank National Association, as Trustee, to the Indenture dated as of August 10, 2010
4.2		Fourth Supplemental Indenture, dated as of September 24, 2015, by and among SPX FLOW, Inc., the Guarantors (as defined herein) and U.S. Bank National Association, as Trustee, to the Indenture dated as of August 10, 2010
10.1		Transition Services Agreement, dated as of September 26, 2015, by and between SPX FLOW, Inc. and SPX Corporation
10.2		Tax Matters Agreement, dated as of September 26, 2015, by and between SPX FLOW, Inc. and SPX Corporation
10.3		Employee Matters Agreement, dated as of September 26, 2015, by and between SPX FLOW, Inc. and SPX Corporation
10.4		Trademark License Agreement, dated as of September 26, 2015, by and between SPX FLOW, Inc. and SPX Corporation
10.5		SPX FLOW Stock Compensation Plan
10.6		SPX FLOW Stock Option Award Agreement
10.7		SPX FLOW Restricted Stock Unit Award Agreement
10.8		SPX FLOW Restricted Stock Award Agreement
10.9		SPX FLOW Executive Annual Bonus Plan
10.10		SPX FLOW Supplemental Retirement Plan for Top Management
10.11		SPX FLOW Life Insurance Plan for Key Managers
10.12		SPX FLOW Supplemental Retirement Savings Plan
10.13		SPX FLOW Executive Long-Term Disability Plan
10.14		Assignment and Assumption of and Amendment to Employment Agreement
10.15		Assignment and Assumption of and Amendment to Change of Control Agreement
99.1		Press Release of SPX FLOW, Inc., dated September 28, 2015

 

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Exhibit 2.1

 

SEPARATION AND DISTRIBUTION AGREEMENT

 

by and between

 

SPX CORPORATION

 

and

 

SPX FLOW, INC.

 

Dated as of September 22, 2015

 

 

TABLE OF CONTENTS

 

ARTICLE I	DEFINITIONS AND INTERPRETATION	2
Section 1.1.	General	2
Section 1.2.	References; Interpretation	15
Section 1.3.	Effective Date of Agreement	16
Section 1.4.	Other Matters	16
ARTICLE II	THE SEPARATION	16
Section 2.1.	General	16
Section 2.2.	Transfer of Assets	16
Section 2.3.	Assumption and Satisfaction of Liabilities	17
Section 2.4.	Intercompany Accounts	17
Section 2.5.	Bank Accounts; Cash Management	18
Section 2.6.	Limitation of Liability; Termination of Inter-Group Agreements	18
Section 2.7.	Transfers Not Effected at or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time	19
Section 2.8.	Transfer Documents	21
Section 2.9.	Shared Contracts	21
Section 2.10.	Further Assurances	22
Section 2.11.	Novation of Liabilities; Consents	23
Section 2.12.	Performance Guarantees	24
Section 2.13.	Disclaimer of Representations and Warranties	25
Section 2.14.	Financing Arrangements; Credit Agreement	26
Section 2.15.	Cash Contribution	27
ARTICLE III	CERTAIN ACTIONS PRIOR TO THE DISTRIBUTION	27
Section 3.1.	Reorganization	27
Section 3.2.	Certificate of Incorporation; Bylaws	27
Section 3.3.	Directors and Executive Officers	27
Section 3.4.	Resignations	28
Section 3.5.	Ancillary Agreements	28
ARTICLE IV	THE DISTRIBUTION	28
Section 4.1.	Exchange of Flowco Assets for Flowco Stock and Debt Securities; Debt Exchange	28
Section 4.2.	Distribution	29
Section 4.3.	Reserved	29
Section 4.4.	Actions in Connection with the Distribution	29
Section 4.5.	Sole and Absolute Discretion of SPX	30
Section 4.6.	Conditions to Distribution	30
ARTICLE V	CERTAIN COVENANTS	31
Section 5.1.	Legal Name	31

 

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Section 5.2.	Auditors and Audits; Financial Statements and Accounting	31
Section 5.3.	No Restrictions on Corporate Opportunities	34
ARTICLE VI	RELEASES AND INDEMNIFICATION	35
Section 6.1.	Release of Pre-Distribution Claims	35
Section 6.2.	Indemnification by Infrastructurco	37
Section 6.3.	Indemnification by Flowco	37
Section 6.4.	Procedures for Indemnification	38
Section 6.5.	Indemnification Payments	40
Section 6.6.	Additional Matters; Survival of Indemnities	40
Section 6.7.	Indemnification Obligations Net of Insurance Proceeds; Contribution	40
Section 6.8.	Characterization of Indemnification and Reimbursement Payments	41
ARTICLE VII	CONFIDENTIALITY; ACCESS TO INFORMATION	42
Section 7.1.	Provision of Corporate Records	42
Section 7.2.	Access to Information	42
Section 7.3.	Witness Services	43
Section 7.4.	Confidentiality	43
Section 7.5.	Privileged Matters	44
Section 7.6.	Ownership of Information	46
Section 7.7.	Retention of Records	46
Section 7.8.	Other Agreements	46
Section 7.9.	Compensation for Providing Information	46
ARTICLE VIII	DISPUTE RESOLUTION	47
Section 8.1.	Negotiation	47
Section 8.2.	Statute of Limitations	47
Section 8.3.	Arbitration	47
Section 8.4.	Continuity of Service and Performance	50
ARTICLE IX	INSURANCE	50
Section 9.1.	Assignment of Rights	50
Section 9.2.	Third Party SPX Policies	51
Section 9.3.	Director and Officer Liability Insurance	52
Section 9.4.	Cooperation	52
Section 9.5.	Miscellaneous	52
ARTICLE X	MISCELLANEOUS	52
Section 10.1.	Complete Agreement; Construction	52
Section 10.2.	Ancillary Agreements	53
Section 10.3.	Counterparts	53
Section 10.4.	Survival of Agreements	53
Section 10.5.	Expenses	53
Section 10.6.	Notices	54
Section 10.7.	Waivers	55
Section 10.8.	Amendments	55
Section 10.9.	Assignment	55

 

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Section 10.10.	Termination, Etc.	55
Section 10.11.	Payment Terms	55
Section 10.12.	No Circumvention	56
Section 10.13.	Subsidiaries	56
Section 10.14.	Third Party Beneficiaries	56
Section 10.15.	Exhibits and Schedules; Title and Headings	56
Section 10.16.	Public Announcements	56
Section 10.17.	Governing Law	57
Section 10.18.	Consent to Jurisdiction	57
Section 10.19.	Specific Performance	57
Section 10.20.	Waiver of Jury Trial	57
Section 10.21.	Severability	58
Section 10.22.	Construction	58
Section 10.23.	Authorization	58

 

EXHIBITS

Exhibit A            Form of Employee Matters Agreement

Exhibit B            Form of Tax Matters Agreement

Exhibit C            Form of Trademark License Agreement

Exhibit D            Form of Transition Services Agreement

 

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SEPARATION AND DISTRIBUTION AGREEMENT

 

THIS SEPARATION AND DISTRIBUTION AGREEMENT (this “Agreement”), is entered into as of September 22, 2015 by and between SPX Corporation, a Delaware corporation (“SPX” or “Infrastructurco”), and SPX FLOW, Inc., a Delaware corporation (“Flowco”) (each a “Party” and together, the “Parties”).  Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in Section 1.1.

 

R E C I T A L S:

 

WHEREAS, SPX, acting through its direct and indirect Subsidiaries, currently conducts the Flowco Business and the Infrastructurco Business;

 

WHEREAS, the Board of Directors of SPX has determined that it is in the best interests of SPX and its stockholders to separate SPX into two separate, publicly traded companies: (i) Infrastructurco, which will continue to conduct, directly and through its Subsidiaries, the Infrastructurco Business, and (ii) Flowco, which will continue to conduct, directly and through its Subsidiaries, the Flowco Business;

 

WHEREAS, in order to effect such separation, the Board of Directors of SPX has determined that it is in the best interests of SPX and its stockholders: (i) for SPX and its Subsidiaries to enter into a series of transactions whereby SPX and its Subsidiaries will be reorganized such that (A) Infrastructurco and/or one or more other members of the Infrastructurco Group will own all of the Infrastructurco Assets and assume (or retain) all of the Infrastructurco Liabilities, and (B) Flowco and/or one or more other members of the Flowco Group will own all of the Flowco Assets and assume (or retain) all of the Flowco Liabilities (the transactions referred to in clauses (A) and (B) being referred to herein as the “Reorganization”); and thereafter (ii) for SPX to distribute to the holders of SPX Common Stock as of the Record Date on a pro rata basis all of the issued and outstanding shares of common stock, par value $0.01 per share, of Flowco (the “Flowco Common Stock”) (such transactions described in clauses (i) and (ii), as may be amended or modified from time to time in accordance with the terms and subject to the conditions of this Agreement, the “Separation”);

 

WHEREAS, the Parties intend (i) that the Separation, together with certain related transactions, generally will qualify as tax-free for U.S. federal income tax purposes under Sections 368(a)(1)(D), 355 and 361 of the Internal Revenue Code of 1986, as amended (the “Code”), (ii) that other transactions connected with the Separation will also qualify as tax-free for U.S. federal income tax purposes under applicable provisions of the Code, and (iii) that this Agreement be, and is hereby adopted as, a plan of reorganization under Section 368 of the Code to the extent relevant for these transactions; and

 

WHEREAS, the Parties intend (i) to set forth in this Agreement the principal arrangements between them with respect to the Separation, and (ii) that certain other agreements will govern certain other matters following the Effective Time.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties, intending to be legally bound, hereby agree as follows:

 

 

ARTICLE I

 

DEFINITIONS AND INTERPRETATION

 

Section 1.1.                       General.  As used in this Agreement, the following capitalized terms shall have the following meanings:

 

“AAA” shall have the meaning set forth in Section 8.3.

 

“Action” shall mean any demand, action, claim, charge, suit, countersuit, arbitration, inquiry, subpoena, proceeding or investigation of any kind by or before any Governmental Entity or any arbitration or mediation tribunal.

 

“Affiliate” shall mean, when used with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person.  For the purposes of this definition and the definition of “Subsidiary,” “control” (including the correlative meanings “controlled by” and “under common control with”), when used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by Contract or otherwise.  From and after the Effective Time, and for purposes of this Agreement and the Ancillary Agreements, Infrastructurco and Flowco shall not be deemed to be under common control for purposes hereof due solely to the fact that Infrastructurco and Flowco have common stockholders or have one or more directors in common or due to the existence of this Agreement or any of the Ancillary Agreements.

 

“Agent” shall mean the distribution agent to be appointed by SPX to distribute to the stockholders of SPX all of the issued and outstanding shares of Flowco Common Stock pursuant to the Distribution.

 

“Agreed Consent Efforts” shall have the meaning set forth in Section 2.7(a).

 

“Agreed Consents” shall have the meaning set forth in Section 2.7(a).

 

“Agreement” shall have the meaning set forth in the preamble hereof.

 

“Agreement Disputes” shall have the meaning set forth in Section 8.1(a).

 

“Amended Financial Reports” shall have the meaning set forth in Section 5.2(b).

 

“Ancillary Agreements” shall mean all written Contracts or other arrangements (other than this Agreement) entered into between the Parties and/or their Subsidiaries in connection with the Separation, the Distribution or the other transactions contemplated hereby, including the Transfer Documents, the Reorganization Documents, the Tax Matters Agreement, the Transition Services Agreement, the Employee Matters Agreement, Trademark License Agreement and the other agreements set forth on Schedule 1.1-1.

 

“Archived Data” shall have the meaning set forth in Section 7.2(c).

 

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“Assets” shall mean assets, properties, claims and rights (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the Records or financial statements of any Person.

 

“Audited Party” shall have the meaning set forth in Section 5.2(a)(iii).

 

“Business” shall mean the Flowco Business or the Infrastructurco Business, as applicable.

 

“Business Day” shall mean any day that is not a Saturday, a Sunday or any other day on which banks are required or authorized by Law to be closed in Charlotte, North Carolina.

 

“Business Entity” shall mean any corporation, partnership, trust, limited liability company, joint venture, or other incorporated or unincorporated organization or other entity of any kind or nature (including those formed, organized or otherwise existing under the Laws of jurisdictions outside the United States).

 

“Code” shall have the meaning set forth in the recitals hereto.

 

“Commission” shall mean the United States Securities and Exchange Commission or any successor agency thereto.

 

“Confidential Information” shall mean business, operations or other information, data or material concerning a Party and/or its Affiliates which, prior to or following the Effective Time, has been disclosed by such Party or its Affiliates or any of their respective representatives or advisors to the other Party or its Affiliates or any of their respective representatives or advisors, in written, oral (including by recording), electronic, or visual form to, or otherwise has come into the possession of, the other, including pursuant to the access provisions of Section 7.1 or Section 7.2 or any other provision of this Agreement or any Ancillary Agreement (except to the extent that such information can be shown to have been (i) in the public domain through no action of such Party or its Affiliates or any of their respective representatives or advisors, (ii) lawfully acquired from other sources by such Party or its Affiliates or any of their respective representatives or advisors to which it was furnished or (iii) independently developed by such Party or its Affiliates without use or reference to Confidential Information of the disclosing Party’s or its Affiliates; provided, however, in the case of clause (ii) that, to the furnished Party’s knowledge, such sources did not provide such information in breach of any confidentiality or fiduciary obligations).

 

“Consents” shall mean any consents, waivers or approvals from, or notification requirements to, any Person other than a Governmental Entity.

 

“Contract” shall mean any contract, obligation, indenture, instrument, agreement, lease, purchase order, commitment, permit, license, note, bond, mortgage, arrangement or undertaking (whether written or oral and whether express or implied) that is legally binding on any Person or any part of its property under applicable Law, but excluding this Agreement and any Ancillary Agreement except as otherwise expressly provided in this Agreement or any Ancillary Agreement.

 

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“Credit Agreement” shall mean the Amended and Restated Credit Agreement, dated as of December 23, 2013, among SPX, the Foreign Subsidiary Borrowers party thereto, Bank of America, N.A., as Administrative Agent, Deutsche Bank AG Deutschlandgeschäft Branch, as Foreign Trade Facility Agent, and the lenders party thereto, as amended, supplemented or otherwise modified from time to time.

 

“Dispute Notice” shall have the meaning set forth in Section 8.1(a).

 

“Distribution” shall mean the distribution by SPX of all of the issued and outstanding shares of Flowco Common Stock to holders of record of shares of SPX Common Stock as of the Record Date on the basis of one (1) share of Flowco Common Stock for every issued and outstanding share of SPX Common Stock.

 

“Distribution Date” shall mean the date of the consummation of the Distribution, which shall be determined by the Board of Directors of SPX in its sole and absolute discretion.

 

“Distribution Disclosure Documents” shall mean the Form 10 and all exhibits thereto (including the Information Statement), any current reports on Form 8-K and the registration statement on Form S-8 related to securities to be offered under Flowco’s employee benefit plans, in each case as filed with or furnished to the Commission by Flowco in connection with the Distribution.

 

“Effective Time” shall mean the time at which the Distribution is effective on the Distribution Date.

 

“Employee Matters Agreement” shall mean the Employee Matters Agreement by and between Infrastructurco and Flowco, to be dated on or about the Distribution Date, and substantially in the form attached as Exhibit A hereto.

 

“Environment” shall mean ambient air, indoor air, surface water, groundwater, stream sediments, wetlands, soil and subsurface strata.

 

“Environmental Law” shall mean any Law relating to (a) human or occupational health and safety with respect to exposure to Hazardous Materials; (b) protection of the Environment and natural resources; or (c) the generation, manufacture, processing, treatment, recycling, storage, disposal, emission, discharge, transport, distribution, labeling, handling, Release or threatened Release of any Hazardous Material.

 

“Environmental Liabilities” shall mean all Liabilities (including all removal, remediation, cleanup or monitoring costs, investigatory costs, response costs, natural resources damages, property damages, personal injury damages, costs of any settlement, judgment or other determination of Liability and indemnity, contribution or similar obligations and all costs and expenses, interest, fines, penalties or other monetary sanctions in connection therewith) relating to, arising out of or resulting from any (a) actual or alleged by a Third Party (i) noncompliance with any Environmental Law, or (ii) presence, Release or threatened Release of, or exposure to, any Hazardous Material, or (b) contract, agreement, or other consensual arrangement pursuant to which Liability is assumed, imposed or retained with respect to any of the foregoing.

 

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“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time that reference is made thereto.

 

“Financing Arrangements” shall mean the financing arrangements for Flowco and Infrastructurco (the “Flowco Financing Arrangements” and the “Infrastructurco Financing Arrangements,” respectively) (described on Schedule 1.1-2).

 

“Flowco” shall have the meaning set forth in the preamble hereof.

 

“Flowco Accounts” shall have the meaning set forth in Section 2.5(a).

 

“Flowco Assets” shall mean (without duplication):

 

(i)                                     the ownership interests (to the extent held by SPX, Flowco or any of their respective Affiliates immediately prior to the Effective Time) in each member of the Flowco Group;

 

(ii)                                  all Flowco Contracts and any and all rights or claims (whether accrued or contingent), including accounts or notes receivables, of SPX, Flowco, or any of their respective Affiliates, to the extent relating to, arising under or resulting therefrom;

 

(iii)                               all Assets owned, leased or held by SPX, Flowco or any of their respective Affiliates immediately prior to the Effective Time that are used primarily or held for use primarily in the Flowco Business;

 

(iv)                              subject to Article IX, any and all rights of any member of the Flowco Group under any Third Party SPX Policies;

 

(v)                                 the Assets listed or described on Schedule 1.1-3 and any and all Assets that are expressly contemplated by this Agreement or any Ancillary Agreement as Assets to be retained by, or assigned or transferred to, any member of the Flowco Group; and

 

(vi)                              all Flowco Accounts, and, subject to the provisions of Section 2.5, all cash, cash equivalents, and securities credited to or on deposit in such accounts immediately prior to the Effective Time, after giving effect to any contribution of cash to Flowco contemplated by Section 2.15.

 

Notwithstanding the foregoing, the Flowco Assets shall in no event include:

 

(A)                               the Assets listed or described on Schedule 1.1-4; or

 

(B)                               any Assets that are expressly contemplated by this Agreement or any Ancillary Agreement (or the schedules hereto or thereto) as Assets to be retained by, or transferred or assigned to, any member of the Infrastructurco Group.

 

5

 

“Flowco Business” shall mean:

 

(i)                                     the businesses and operations of the Flow Technology reportable segment of SPX and its Subsidiaries and the businesses and operations of the Hydraulic Technologies Business, as described in the Information Statement, but excluding all of the Former SPX Businesses; and

 

(ii)                                  the businesses and operations of Business Entities acquired or established by or for any member of the Flowco Group after the Effective Time.

 

“Flowco Common Stock” shall have the meaning set forth in the recitals hereto.

 

“Flowco Contracts” shall mean the following Contracts to which any of SPX, Flowco, or any of their respective Affiliates is a party immediately prior to the Effective Time:

 

(i)                                     any Contract that relates primarily to the Flowco Business;

 

(ii)                                  any Contract or part thereof that is otherwise expressly contemplated pursuant to this Agreement or any of the Ancillary Agreements to be retained by, transferred or assigned to, any member of the Flowco Group; and

 

(iii)                               the Contracts listed or described on Schedule 1.1-5.

 

Notwithstanding the foregoing, the Flowco Contracts shall in no event include the Contracts listed or described on Schedule 1.1-6.

 

“Flowco Disclosure” shall mean any form, statement, schedule or other material (other than the Distribution Disclosure Documents) filed with or furnished to the Commission, any other Governmental Entity, or holders of any securities of any member of the Flowco Group, in each case, on or after the Distribution Date by or on behalf of any member of the Flowco Group in connection with the registration, sale, or distribution of securities or disclosure related thereto (including periodic disclosure obligations).

 

“Flowco Employee” shall have the meaning set forth in the Employee Matters Agreement.

 

“Flowco Financing Arrangements” shall have the meaning set forth in the definition of “Financing Arrangements.”

 

“Flowco Global Note” shall mean physical evidence of Flowco’s indebtedness under the Indenture in substantially the form set forth in Exhibit A to the Indenture.

 

“Flowco Group” shall mean Flowco and each Person identified on Schedule 1.1-7 and each Person who is or becomes an Affiliate of Flowco at or after the Effective Time.

 

“Flowco Group Performance Guarantee” shall have the meaning set forth in Section 2.12(a).

 

“Flowco Indemnitees” shall mean each member of the Flowco Group and each of their respective Affiliates, and each of their respective directors, officers, employees and agents (in

 

6

 

each case, in their respective capacities as such) and each of the heirs, executors, successors and assigns of any of the foregoing.

 

“Flowco Liabilities” shall mean only the following Liabilities of any of SPX, Flowco or any of their respective Affiliates:

 

(i)                                     the Liabilities listed or described on Schedule 1.1-8 and any and all Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement as Liabilities to be retained, assumed, performed, satisfied or retired by any member of the Flowco Group;

 

(ii)                                  any and all Liabilities, including Environmental Liabilities, to the extent relating to, arising out of or resulting from:

 

(A)                               the operation or conduct of any Flowco Business, as conducted at any time prior to, on or after the Effective Time;

 

(B)                               any Flowco Assets, whether arising before, on or after the Effective Time;

 

(iii)                               any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from:

 

(A)                               the Distribution Disclosure Document except to the extent specifically enumerated as a Infrastructurco Liability on Schedule 1.1-11; and

 

(B)                               any Flowco Disclosure;

 

(iv)                              any and all Liabilities relating to, arising out of or resulting from any Indebtedness of any member of the Flowco Group incurred pursuant to the Flowco Financing Arrangements or after the Effective Time;

 

(v)                                 any and all Liabilities relating to, resulting from, or arising out of any Action (x) listed or described on Schedule 1.1-9 or (y) to the extent such Action relates to, results from, or arises out of the Flowco Business, the Flowco Assets or the other Flowco Liabilities; and

 

(vi)                              the Flowco Specified Liabilities.

 

Notwithstanding the foregoing, the Flowco Liabilities shall in no event include (A) any Retained Specified Liabilities, (B) any Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement (or the schedules hereto or thereto) as Liabilities to be retained, assumed, performed, satisfied or retired by any member of the Infrastructurco Group, or for which any member of the Infrastructurco Group is liable pursuant to this Agreement or such Ancillary Agreement, (C) the Notes or (D) the Liabilities listed or described on Schedule 1.1-10.

 

“Flowco Specified Liabilities” shall mean any actual or alleged Liabilities arising out of or attributable to actual or alleged personal injuries asserted by a Person (whether prior to or after the Distribution Date) resulting from the actual or alleged manufacture, sale or distribution of products containing asbestos in connection with the Clyde Union business, or from actual or

 

7

 

alleged exposure to or injury from asbestos or products containing asbestos at a premises that was or is owned or operated by the Clyde Union business, including all such liabilities of Clyde Union, Inc., a Michigan corporation.

 

“Form 10” shall mean the registration statement on Form 10 filed by Flowco with the Commission in connection with the Distribution and all amendments thereto.

 

“Former SPX Business” shall mean any Business Entity, division, real estate, facility, material Asset, business unit or business, including any business within the definition of Rule 11-01(d) of Regulation S-X promulgated under the Exchange Act (in each case, including any Assets and Liabilities comprising the same) that has been sold, conveyed, assigned, transferred or otherwise disposed of or divested (in whole or in part), or the operations, activities or production of which has been discontinued, abandoned, completed or otherwise terminated (in whole or in part), in each case by SPX or any of its current or former Affiliates prior to the Effective Time.

 

“Governmental Approvals” shall mean any notices or reports to be submitted to, or other filings to be made with, or any consents, registrations, approvals, permits or authorizations to be obtained from, any Governmental Entity.

 

“Governmental Entity” shall mean any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign or multinational, exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any official thereof, including the NYSE and any similar self-regulatory body under applicable securities Laws.

 

“Group” shall mean either the Flowco Group or the Infrastructurco Group, as the context requires.

 

“Hazardous Materials” shall mean (a) any petroleum or petroleum products, radiation or radioactive materials, asbestos or asbestos-containing materials or polychlorinated biphenyls (PCBs), and (b) any chemicals, materials, substances or wastes that are defined or characterized as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “special waste,” “toxic substances,” “pollutants,” “contaminants” or words of similar import, under any Environmental Law.

 

“Hydraulic Technologies Business” shall mean the hydraulic technologies division within SPX headquartered in Rockford, Illinois with additional facilities in: Newcastle, UK; Dagenham, UK; Eygelshoven, Netherlands; Perth, Australia; Singapore; Suzhou, China; and Houston, Texas and which utilizes the Power Team, Bolting Systems, Stone, Globe, Rail Systems and Hytec brands.

 

“Indebtedness” shall mean with respect to any Person (i) any indebtedness of such Person for borrowed money or the deferred purchase price of property (other than trade accounts payable incurred in the ordinary course of business) as evidenced by a note, bonds or other instruments, (ii) obligations of such Person as lessee under capital leases, (iii) obligations (excluding prepaid interest thereon) secured by any mortgage, pledge, security interest,

 

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encumbrance, lien or charge of any kind existing on any asset owned or held by such Person (excluding indebtedness arising under conditional sales or other title retention agreements incurred in the ordinary course of business), whether or not such Person has assumed or become liable for the obligations secured thereby, (iv) any net obligation under any interest rate swap agreement or other hedging arrangement, (v) reimbursement obligations of such Person with respect to surety and performance bonds, bank guarantees, bankers’ acceptances, letters of credit or similar instruments, and (vi) obligations of such Person under direct or indirect guarantees of (including obligations, contingent or otherwise, to assure a creditor against loss in respect of) indebtedness or obligations of the kinds referred to in clauses (i), (ii), (iii), (iv) and (v) above.

 

“Indemnifiable Loss” and “Indemnifiable Losses” shall mean any and all damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including costs and expenses provided for in Section 10.5(c) and the costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the reasonable costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder).

 

“Indemnifying Party” shall have the meaning set forth in Section 6.4(b).

 

“Indemnitee” shall have the meaning set forth in Section 6.4(b).

 

“Indemnity Payment” shall have the meaning set forth in Section 6.7(a).

 

“Indenture” shall mean the indenture, dated as of August 16, 2010 (as supplemented) by and among SPX, each of the guarantors party thereto and U.S. Bank National Association, as trustee.

 

“Information” shall mean information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.

 

“Information Statement” shall mean the Information Statement attached as an exhibit to the Form 10 sent to the holders of shares of SPX Common Stock in connection with the Distribution, including any amendment or supplement thereto.

 

“Infrastructurco” shall have the meaning set forth in the preamble hereof.

 

“Infrastructurco Accounts” shall have the meaning set forth in Section 2.5(a).

 

“Infrastructurco Assets” any and all Assets of SPX, Flowco or their respective Subsidiaries as of immediately prior to the Effective Time that are not Flowco Assets, including

 

9

 

any and all Assets that are expressly contemplated by this agreement or any Ancillary Agreement as Assets to be retained by, or assigned or transferred to, any member of Infrastructure Group.

 

“Infrastructurco Business” shall mean:

 

(i)                                     all businesses and operations of SPX and its Affiliates (other than the Flowco Business) and all Former SPX Businesses; and

 

(ii)                                  the businesses and operations of Business Entities acquired or established by or for any member of the Infrastructurco Group after the Effective Time.

 

“Infrastructurco Disclosure” shall mean any form, statement, schedule or other material (other than the Distribution Disclosure Documents) filed with or furnished to the Commission, any other Governmental Entity, or holders of any securities of any member of the Infrastructurco Group, in each case, on or after the Effective Time by or on behalf of any member of the Infrastructurco Group in connection with the registration, sale or distribution of securities or disclosure related thereto (including periodic disclosure obligations).

 

“Infrastructurco Employee” shall have the meaning set forth in the Employee Matters Agreement.

 

“Infrastructurco Financing Arrangements” shall have the meaning set forth in the definition of “Financing Arrangements.”

 

“Infrastructurco Group” shall mean (i) Infrastructurco and each of its Subsidiaries immediately following the Effective Time and (ii) each other Person who is or becomes an Affiliate of Infrastructurco at or after the Effective Time, in each case, other than the members of the Flowco Group.

 

“Infrastructurco Group Performance Guarantee” shall have the meaning set forth in Section 2.12(b).

 

“Infrastructurco Indemnitees” shall mean each member of the Infrastructurco Group and each of their respective Affiliates, and each of their respective directors, officers, employees and agents (in each case, in their respective capacities as such) and each of the heirs, executors, successors and assigns of any of the foregoing.

 

“Infrastructurco Liabilities” shall mean any and all Liabilities of any of SPX, Flowco or any of their respective Affiliates, including:

 

(i)                                     any and all Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement as Liabilities to be retained, assumed, performed, satisfied or retired by any member of the Infrastructurco Group;

 

(ii)                                  any and all Liabilities, including Environmental Liabilities, to the extent relating to, arising out of or resulting from:

 

(A)                               the operation or conduct of any Infrastructurco Business, as conducted at any time prior to, on or after the Effective Time:

 

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(B)                               any of the Former SPX Businesses; or

 

(C)                               any Infrastructurco Assets, whether arising before, on or after the Effective Time;

 

(iii)                               any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from:

 

(A)                               the Pre-Separation Disclosure; or

 

(B)                               a material misstatement or omission contained in the sections of the Distribution Disclosure Documents described in Schedule 1.1-11; or

 

(C)                               any Infrastructurco Disclosure;

 

(iv)                              any and all Liabilities relating to, arising out of or resulting any Indebtedness of any member of the Infrastructurco Group incurred pursuant to the Infrastructurco Financing Arrangements or after the Effective Time;

 

(v)                                 any and all Liabilities relating to, resulting from, or arising out of any Action (x) listed or described on Schedule 1.1-12; or (y) to the extent such Action relates to, results from, or arises out of the Infrastructurco Business, the Infrastructurco Assets or the other Infrastructurco Liabilities;

 

(vi)                              any and all Retained Specified Liabilities; and

 

(vii)                           any and all Liabilities as of immediately prior to the Effective Time that are not Flowco Liabilities.

 

Notwithstanding the foregoing, the Infrastructurco Liabilities shall in no event include (A) any Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement (or the schedules hereto or thereto) as Liabilities to be retained, assumed, performed, satisfied or retired by any member of the Flowco Group, or for which any member of the Flowco Group is liable pursuant to this Agreement or such Ancillary Agreement, or (B) the Notes.

 

“Infrastructurco Third Party Performance Support” shall have the meaning set forth in Section 2.12(c).

 

“Insurance Proceeds” shall mean those monies (i) received by an insured from an unaffiliated Third-Party insurer under any Third Party SPX Policy, or (ii) paid by such Third-Party insurer on behalf of an insured under any Third Party SPX Policy.

 

“Insured Claims” shall mean those Liabilities that, individually or in the aggregate, are covered within the terms and conditions of any of the Third Party SPX Policies, whether or not subject to deductibles, co-insurance, uncollectibility, exhaustion of limits, or retrospectively-rated premium adjustments.

 

“Intercompany Accounts” shall mean any receivable, payable or loan between any member of the Infrastructurco Group, on the one hand, and any member of the Flowco Group, on the other hand, that is reflected in the Records of the relevant members of the Infrastructurco

 

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Group and the Flowco Group, except for any such receivable, payable or loan that arises pursuant to this Agreement or any Ancillary Agreement.

 

“Internal Control Audit and Management Assessments” shall have the meaning set forth in Section 5.2(a)(i).

 

“Law” shall mean any U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, income tax treaty, order requirement or rule of law (including common law) or other binding directives of any Governmental Entity.

 

“Liabilities” shall mean all debts, liabilities, obligations, responsibilities, response actions, losses, damages (whether compensatory, punitive, consequential, incidental, treble or other), fines, penalties and sanctions, absolute or contingent, matured or unmatured, liquidated or unliquidated, foreseen or unforeseen, joint, several or individual, asserted or unasserted, accrued or unaccrued, known or unknown, whenever arising, including those arising under or in connection with any Law or other pronouncements of Governmental Entities having the effect of Law, Actions, threatened Actions, order or consent decree of any Governmental Entity or any award of any arbitration tribunal, and those arising under any Contract, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, or otherwise, and including any costs, expenses, interest, attorneys’ fees, disbursements and expenses of counsel, expert and consulting fees and costs related thereto or to the investigation or defense thereof.

 

“Liable Party” shall have the meaning set forth in Section 2.11(b).

 

“Negotiation Period” shall have the meaning set forth in Section 8.1(a).

 

“Notes” shall mean SPX’s 6.875 % Senior Notes due 2017 subject to the Indenture.

 

“Novated Third Party SPX Liability Policies” shall mean the Third Party SPX Policies other than those listed on Schedule 1.1-13.

 

“NYSE” shall mean the New York Stock Exchange.

 

“Other Parties’ Auditors” shall have the meaning set forth in Section 5.2(a)(iii).

 

“Party” shall have the meaning set forth in the preamble hereof.

 

“Performance Guarantee Obligation” shall have the meaning set forth in Section 2.12(d).

 

“Person” shall mean any (i) individual, (ii) Business Entity or (iii) Governmental Entity.

 

“Policies” shall mean insurance policies and insurance Contracts of any kind (other than life and benefits policies or Contracts), including primary, excess and umbrella policies, comprehensive general liability policies, director and officer liability, fiduciary liability, automobile, aircraft, property and casualty, business interruption, workers’ compensation and employee dishonesty insurance policies, together with the rights, benefits and privileges thereunder.

 

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“Pre-Separation Disclosure” shall mean any form, statement, schedule or other material (other than the Distribution Disclosure Documents) that SPX, Flowco, or any of their respective Affiliates filed with or furnished to the Commission, any other Governmental Entity, or holders of any securities of SPX or any of its Affiliates, in each case, prior to the Effective Time and in connection with the registration, sale, or distribution of securities or disclosure related thereto (including periodic disclosure obligations).

 

“Prime Rate” shall mean the rate per annum publicly announced by JPMorgan Chase Bank (or any successor thereto or other major money center commercial bank agreed to by the Parties) from time to time as its prime lending rate, as in effect from time to time.

 

“Record Date” shall mean the date to be determined by the Board of Directors of SPX in its sole and absolute discretion as the record date for the Distribution.

 

“Records” shall mean any Contracts, documents, books, records or files.

 

“Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of a Hazardous Material into the Environment (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Materials).

 

“Reorganization” shall have the meaning set forth in the recitals hereto.

 

“Reorganization Documents” shall have the meaning set forth in Section 3.1.

 

“Reorganization Step Plan” shall have the meaning set forth in Section 3.1.

 

“Retained Specified Liabilities” shall mean any actual or alleged Liabilities, other than Flowco Specified Liabilities, arising out of or attributable to the actual or alleged manufacture, sale or distribution of products containing asbestos in connection with any of the businesses or operations of SPX or any of its Affiliates or by Former SPX Businesses prior to the Effective Time, or from actual or alleged exposure to or injury from asbestos or products containing asbestos at a premises that was or is owned or operated by any of the businesses or operations of SPX or any of its current or former Affiliates or any of their respective Former Businesses prior to the Effective Time, including Liabilities arising out of or attributable to actual or alleged personal injuries asserted by a Person (whether prior to or after the Effective Time) resulting from exposure to any products containing asbestos manufactured, marketed, sold or distributed in connection with any of the businesses or operations of SPX or any of its Affiliates or any of their respective Former Businesses prior to the Effective Time (other than Flowco Specified Liabilities).

 

“Rules” shall have the meaning set forth in Section 8.3.

 

“Security Interest” shall mean any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever, excluding restrictions on transfer under securities Laws.

 

“Separation” shall have the meaning set forth in the recitals hereto.

 

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“Shared Access Period” shall have the meaning set forth in Section 7.2(b).

 

“Shared Contracts” shall mean the Contracts entered into prior to the Effective Time to which either Party or any of its respective Subsidiaries and one or more Third Parties are a party that inures to the benefit or burden of both the Flowco Business and the Infrastructurco Business.

 

“Shared Contractual Liabilities” shall mean Liabilities in respect of Shared Contracts.

 

“Software” shall mean all computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data, and technology supporting the foregoing, and all documentation, including flowcharts and other logic and design diagrams, technical, functional and other specifications, and user manuals and training materials related to any of the foregoing.

 

“SPX” shall have the meaning set forth in the preamble hereof.

 

“SPX Common Stock” shall mean the issued and outstanding shares of common stock, par value $0.01 per share, of SPX.

 

“SPX Global Note” shall mean physical evidence of SPX’s indebtedness under the Indenture in substantially the form set forth in Exhibit A to the Indenture.

 

“Subsidiary” shall mean with respect to any Person (i) a corporation, fifty percent (50%) or more of the voting capital stock of which is, as of the time in question, directly or indirectly owned by such Person and (ii) any other Business Entity in which such Person, directly or indirectly, owns fifty percent (50%) or more of the equity economic interest thereof or has the power to elect or direct the election of fifty percent (50%) or more of the members of the governing body of such entity or otherwise has control over such entity (e.g., as the managing partner of a partnership).

 

“Tax” shall have the meaning set forth in the Tax Matters Agreement.

 

“Tax Matters Agreement” shall mean the Tax Matters Agreement by and between SPX and Flowco, dated as of the date hereof, and substantially in the form attached as Exhibit B hereto.

 

“Third Party” shall mean any Person other than the Parties or any of their respective Subsidiaries.

 

“Third Party Claim” shall have the meaning set forth in Section 6.4(b).

 

“Third Party SPX Policies” shall mean all Policies with policy periods or coverage rights in effect as of the Effective Time issued by unaffiliated Third-Party insurers to SPX or any of its current or former Affiliates which cover risks that relate to the Flowco Liabilities, Flowco Assets or Flowco Business, including the Policies listed on Schedule 1.1-14.

 

“Trademark License Agreement” shall mean the Trademark License Agreement by and between Infrastructurco and Flowco, to be dated on or about the date hereof, and substantially in the form attached as Exhibit C hereto.

 

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“Transfer” shall have the meaning set forth in Section 2.2(a)(i).

 

“Transfer Documents” shall mean, collectively, the various Contracts and other documents entered into and to be entered into to effect the transfer of Assets and the assumption of Liabilities in the manner contemplated by this Agreement (including as contemplated by the Reorganization Step Plan) or otherwise relating to, arising out of or resulting from the transactions contemplated by this Agreement (other than the Ancillary Agreements), each of which shall be in such form and dated as of such date as SPX shall determine in its sole and absolute discretion.

 

“Transferred Entities” shall have the meaning set forth in Section 2.2(a)(i).

 

“Transition Services Agreement” shall mean the Transition Services Agreement by and between Infrastructurco and Flowco, dated as of the date hereof, and substantially in the form attached as Exhibit D hereto.

 

“Wholly Owned Subsidiary” shall mean, with respect to any Person, any Subsidiary of such Person if all of the common stock or other similar equity ownership interests (but not including non-voting preferred stock) in such Subsidiary (other than any director’s qualifying shares or investments by foreign nationals mandated by applicable Law) is owned directly or indirectly by such Person.

 

Section 1.2.                       References; Interpretation.  References in this Agreement to any gender include references to all genders, and references to the singular include references to the plural and vice versa.  Any action to be taken by the Board of Directors of a Party may be taken by a committee of the Board of Directors of such Party if properly delegated by the Board of Directors of a Party to such committee.  Unless the context otherwise requires:

 

(i)                                     the words “include,” “includes” and “including” when used in this Agreement shall be deemed to be followed by the phrase “without limitation;”

 

(ii)                                  references in this Agreement to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement;

 

(iii)                               the words “hereof,” “hereby” and “herein” and words of similar meaning when used in this Agreement refer to this Agreement in its entirety and not to any particular Article, Section or provision of this Agreement;

 

(iv)                              references in this Agreement to any time shall be to Eastern time unless otherwise expressly provided herein;

 

(v)                                 the Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein; and

 

(vi)                              any agreement by a Party to take, or refrain from taking, any action hereunder shall be deemed to constitute an agreement by such Party to cause each member of such Party’s Group to take, or refrain from taking, such action.

 

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Section 1.3.                       Effective Date of Agreement.  This Agreement shall be effective as of the date first written above.

 

Section 1.4.                       Other Matters.  As described in more detail in, but subject to the terms and conditions of, Section 10.1 and Section 10.2, each Ancillary Agreement will govern Infrastructurco’s and Flowco’s respective rights, responsibilities and obligations after the Distribution with respect to the matters set forth in such Ancillary Agreement, except as expressly set forth in this Agreement or any other Ancillary Agreement.

 

ARTICLE II

 

THE SEPARATION

 

Section 2.1.                       General.  Subject to the terms and conditions of this Agreement, the Parties shall use their respective commercially reasonable efforts to ensure the transactions contemplated hereby are consummated in a timely manner.  It is the intent of the Parties that prior to the Distribution, Infrastructurco, Flowco and their respective Subsidiaries shall be reorganized, to the extent necessary, such that immediately following the consummation of such reorganization, subject to Section 2.7 and the provisions of any Ancillary Agreement, (i) all of SPX’s and its Subsidiaries’ right, title and interest in and to the Flowco Assets will be owned or held by a member or members of the Flowco Group, the Flowco Business will be conducted by the members of the Flowco Group, and the Flowco Liabilities will be assumed by (or retained by) a member of the Flowco Group; and (ii) all of SPX’s and its Subsidiaries’ right, title and interest in and to the Infrastructurco Assets will be owned or held by a member or members of the Infrastructurco Group, the Infrastructurco Business will be conducted by the members of the Infrastructurco Group and the Infrastructurco Liabilities will be assumed by (or retained by) a member of the Infrastructurco Group.

 

Section 2.2.                       Transfer of Assets.

 

(a)                                 At or prior to the Effective Time:

 

(i)                                     Infrastructurco shall, and hereby does, transfer, contribute, assign, distribute, and convey (“Transfer”) to Flowco or another member of the Flowco Group, and Flowco shall, and hereby does, accept from Infrastructurco and the applicable members of the Infrastructurco Group, all of the members of the Infrastructurco Group’s respective direct or indirect rights, title and interest in and to the Flowco Assets, including all issued and outstanding shares of capital stock or other ownership interests in the entities listed on Schedule 2.2(a)(i) (the “Transferred Entities”) (it being understood that if any Flowco Asset shall be held by a Transferred Entity or a Subsidiary of a Transferred Entity, such Flowco Asset shall be deemed to be Transferred for all purposes hereunder as a result of the Transfer of the equity interests in such Transferred Entity to Flowco or another member of the Flowco Group); and

 

(ii)                                  Flowco shall, and hereby does, Transfer to Infrastructurco or another member of the Infrastructurco Group, and Infrastructurco shall, and hereby does accept from Flowco and the applicable members of the Flowco Group, all of members of the Flowco Group’s respective direct or indirect right,

 

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title and interest in and to the Infrastructurco Assets held by Flowco or another member of the Flowco Group, including all issued and outstanding shares of capital stock or other ownership interests in the entities listed on Schedule 2.2(a)(ii) (the “Retained Entities”) (it being understood that if any Infrastructurco Asset shall be held by a Retained Entity or a Subsidiary of a Retained Entity, such Infrastructurco Asset shall be deemed to be Transferred for all purposes hereunder as a result of the Transfer of the equity interests in such Retained Entity to Infrastructurco or another member of the Infrastructurco Group).

 

(b)                                 Unless otherwise agreed to by the Parties, each of Infrastructurco and Flowco, as applicable, shall be entitled to designate the Business Entity within such Party’s respective Group to which any Assets are to be transferred pursuant to this Agreement.

 

Section 2.3.                       Assumption and Satisfaction of Liabilities.  Except as otherwise specifically set forth in this Agreement or any Ancillary Agreement, from and after the Effective Time, (a) Infrastructurco shall, and hereby does, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms, all of the Infrastructurco Liabilities and (b) Flowco shall, and hereby does, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms, all the Flowco Liabilities, in each case regardless of (i) when or where such Liabilities arose or arise, (ii) where or against whom such Liabilities are asserted or determined, (iii) whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of law, willful misconduct, bad faith, fraud or misrepresentation by any member of the Infrastructurco Group or the Flowco Group, as the case may be, or any of their past or present respective directors, officers, employees, or agents, (iv) which entity is named in any action associated with any Liability, and (v) whether the facts on which they are based occurred prior to, on or after the date hereof.

 

Section 2.4.                       Intercompany Accounts.

 

(a)                                 Each Intercompany Account (other than those set forth on Schedule 2.4(a)) shall be satisfied and/or settled by Infrastructurco and Flowco no later than the Effective Time by (i) forgiveness by the relevant obligee, (ii) one or a related series of distributions of and/or contributions to capital, (iii) payment by the relevant obligor to the relevant obligee, or (iv) dividends or a combination of the foregoing, in each case as determined by SPX in its sole and absolute discretion.

 

(b)                                 With respect to any Intercompany Account that is set forth on Schedule 2.4(a) and any other Intercompany Account that is not satisfied or settled as described in Section 2.4(a) for any reason, such Intercompany Account shall continue to be outstanding after the Effective Time and thereafter (i) shall be an obligation of the relevant Party (or the relevant member of such Party’s Group), each responsible for fulfilling its (or a member of such Party’s Group’s) obligations in accordance with the terms and conditions applicable to such obligation or if such terms and conditions are not set forth in writing, such obligation shall be satisfied within 30 days of a written request by the beneficiary of such obligation given to the corresponding obligor thereunder, and (ii) shall be for each relevant Party (or the relevant member of such Party’s Group) an obligation to a Third Party and shall no longer be an Intercompany Account.

 

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Section 2.5.                       Bank Accounts; Cash Management.

 

(a)                                 The Parties agree to take, at the Effective Time (or such earlier time as SPX may determine in its sole and absolute discretion), all actions necessary to amend, terminate and/or replace, as applicable, all Contracts governing each bank and brokerage account owned by Flowco or any other member of the Flowco Group (the “Flowco Accounts”) so that such Flowco Accounts, if currently linked (whether by automatic withdrawal, automatic deposit, or any other authorization to transfer funds from or to, hereinafter “linked”) to any bank or brokerage account owned by Infrastructurco or any other member of the Infrastructurco Group (the “Infrastructurco Accounts”) are de-linked from the Infrastructurco Accounts.  From and after the Effective Time, no Infrastructurco Employee shall have any authority to access or control any Flowco Account, except as provided for through the Transition Services Agreement.

 

(b)                                 The Parties agree to take, at the Effective Time (or such earlier time as SPX may determine in its sole and absolute discretion), all actions necessary to amend, terminate and/or replace, as applicable, all Contracts governing the Infrastructurco Accounts so that such Infrastructurco Accounts, if currently linked to a Flowco Account, are de-linked from the Flowco Accounts.  From and after the Effective Time, no Flowco Employee shall have any authority to access or control any Infrastructurco Account, except as provided for through the Transition Services Agreement.

 

(c)                                  It is intended that, following consummation of the actions contemplated by sections (a) and (b) above, there will be put in place a centralized cash management system pursuant to which the Flowco Accounts will be managed centrally and funds collected will be transferred into one or more centralized accounts maintained by members of the Flowco Group.

 

(d)                                 It is intended that, following consummation of the actions contemplated by sections (a) and (b) above, there will continue to be in place a centralized cash management system pursuant to which the Infrastructurco Accounts will be managed centrally and funds collected will be transferred into one or more centralized accounts maintained by members of the Infrastructurco Group.

 

(e)                                  With respect to any outstanding checks issued by Infrastructurco, Flowco, or any of the members of their respective Groups prior to the Effective Time, such outstanding checks shall be honored following the Effective Time by the member of the applicable Group owning the account on which the check is drawn.

 

(f)                                   As between the Parties (and the members of their respective Groups) all payments and reimbursements received after the Effective Time by either Party (or member of its Group) that relate to a Business, Asset or Liability of the other Party (or member of its Group), shall be held by such Party in trust for the use and benefit of the Party entitled thereto and, promptly upon receipt by such Party of any such payment or reimbursement, such Party shall pay over to the other Party the amount of such payment or reimbursement without right of set-off.

 

Section 2.6.                       Limitation of Liability; Termination of Inter-Group Agreements.

 

(a)                                 Except as otherwise expressly provided in this Agreement, no Party shall have any Liability to any other Party or any member of each other Party’s Group in the event that

 

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any Information exchanged or provided pursuant to this Agreement (but excluding any such information included in the Distribution Disclosure Documents, Pre-Separation Disclosure, the Infrastructurco Disclosure and the Flowco Disclosure, Liability for any and all of which will be governed by Section 2.3) which is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate.

 

(b)                                 Except as provided in Section 2.4, Section 2.9, Section 2.12 or as set forth in subsection (c) below, no Party shall have any Liability to any other Party or any member of such other Party’s Group based upon, arising out of or resulting from any Contract, arrangement, course of dealing or understanding between it or any members in its Group, on the one hand, and the other Party, or any members of its Group, on the other hand, whether or not in writing, entered into or existing at or prior to the Effective Time, and each Party hereby terminates any and all Contracts, arrangements, course of dealings or understandings between it or any members in its Group, on the one hand, and the other Party, or any members of its Group, on the other hand, effective as of immediately prior to the Effective Time, and any such Liability, whether or not in writing, is hereby irrevocably cancelled, released and waived effective as of the Effective Time.  No such terminated Contract, arrangement, course of dealing or understanding (including any provision thereof which purports to survive termination) shall be of any further force or effect after the Effective Time.  Each Party shall, at the reasonable request of the other Party, take, or cause to be taken, any reasonably requested actions necessary to effect the foregoing.

 

(c)                                  The provisions of Section 2.6(b) shall not apply to any of the following Contracts, arrangements, course of dealings or understandings (or to any of the provisions thereof):

 

(i)                                     this Agreement, the Ancillary Agreements, the Reorganization Documents and any Contract entered into in connection herewith or in order to consummate the transactions contemplated hereby or thereby;

 

(ii)                                  any Contracts, arrangements, course of dealings or understandings to which any Third Party is a party (it being understood that to the extent that the rights and obligations of the Parties and the members of their respective Groups under any such Contracts, arrangements, course of dealings or understandings constitute Infrastructurco Assets, Flowco Assets, Infrastructurco Liabilities or Flowco Liabilities, such Contracts, arrangements, course of dealings or understandings shall be assigned or retained pursuant to Article II); and

 

(iii)                               any Contracts, arrangements, commitments or understandings to which any non-Wholly Owned Subsidiary of Infrastructurco or Flowco is a party.

 

Section 2.7.                       Transfers Not Effected at or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time.

 

(a)                                 To the extent that any Transfers or assumptions contemplated by this Article II shall not have been consummated at or prior to the Effective Time, the Parties shall cooperate to effect such Transfers or assumptions as promptly following the Effective Time as shall be practicable.  Nothing herein shall be deemed to require or constitute the Transfer of any Assets or the assumption of any Liabilities which by their terms or operation of Law cannot be

 

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Transferred or assumed; provided, however, that the Parties shall cooperate in good faith to agree on Consents or Governmental Approvals for the Transfer of all Assets and assumption of all Liabilities contemplated to be Transferred or assumed pursuant to this Article II that should be obtained (the “Agreed Consents”) and the efforts to be expended by the Parties to seek to obtain the Agreed Consents (the “Agreed Consent Efforts”).  In the event that any such Transfer of Assets or assumption of Liabilities has not been consummated as of the Effective Time, then from and after the Effective Time (i) the Party (or relevant member in its Group) retaining such Asset shall thereafter hold such Asset for the use and benefit of the Party (or relevant member in its Group) entitled thereto (at the expense of the Person entitled thereto) (for the avoidance of doubt, each Party may grant Security Interests on any such Assets to secure its own financings notwithstanding that any such Asset is being held for the use and benefit of the other Party or relevant member in its Group), (ii) the Party intended to assume such Liability shall pay or reimburse the Party (or the relevant member of its Group) retaining such Liability for all amounts reasonably paid or incurred in connection with the retention of such Liability and (iii) the Parties shall, for U.S. federal income tax purposes, reflect the Transfers of the use and benefit of such Assets and the assumption of reimbursement obligations for such Liabilities contemplated in this Section 2.7(a) as having occurred as of the Effective Time, in each case subject to applicable Law.  In addition, the Party retaining such Asset or Liability shall treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Asset or Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the Party to which such Asset or Liability is to be transferred or assumed in order to place such Party, insofar as reasonably possible, in the same position as if such Asset or Liability had been transferred or assumed as contemplated hereby and so that all the benefits and burdens relating to such Asset or Liability, including possession, use, risk of loss, potential for income and gain, and dominion, control and command over such Asset or Liability, are to inure from and after the Effective Time to the relevant member of the Infrastructurco Group or the Flowco Group, as the case may be, entitled to the receipt of such Asset or Liability.

 

(b)                                 If and when the Consents, Governmental Approvals and/or conditions, the absence or non-satisfaction of which caused the deferral of transfer or assignment of any Asset or assumption of any Liability pursuant to Section 2.7(a), are obtained or satisfied, the transfer, assignment or novation of the applicable Asset or Liability shall be effected without further consideration in accordance with and subject to the terms of this Agreement (including Sections 2.2 and 2.3) and/or the applicable Ancillary Agreement as promptly as practicable after the receipt of such Consents, Governmental Approvals and/or absence or satisfaction of conditions.

 

(c)                                  The Party (or relevant member of its Group) retaining any Asset or Liability due to the deferral of the transfer or assignment of such Asset or the deferral of the assumption of such Liability pursuant to Section 2.7(a) shall (i) not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced, or agreed in advance to be reimbursed by the Party (or relevant member of its Group) entitled to such Asset, other than reasonable outside attorneys’ fees and recording or similar fees paid or incurred in connection with the transfer or assignment of such Asset, all of which shall be promptly reimbursed by the Party (or relevant member of its Group) entitled to such Asset and (ii) be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such retained Asset or Liability, as the case may be.

 

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(d)                                 If at any time prior to April 30, 2018 either Party determines that it (or any member of its Group) owns any Asset that was allocated by the terms of this Agreement to be Transferred to the other Party or any member of such other Party’s Group at the Effective Time or that is agreed by such Party and the other Party in their good faith judgment to be an Asset that more properly belongs to the other Party or any member of such other Party’s Group or an Asset that such other Party or any member of such other Party’s Group was intended to have the right to continue to use, then the Party owning such Asset shall as applicable (i) Transfer any such Asset to the Party (or relevant member of its Group) identified as the appropriate transferee and following such Transfer, such Asset shall be a Flowco Asset or Infrastructurco Asset, as the case may be, or (ii) grant such mutually agreeable rights with respect to such Asset to permit such continued use, subject to, and consistent with this Agreement, including with respect to assumption of associated Liabilities.  In connection with such transfer, contribution, assignment, distribution or conveyance, the receiving party shall assume all Liabilities related to such Asset.

 

(e)                                  After the Effective Time, each Party (or any member of its Group) may receive mail, correspondence, e-mail, packages and other communications properly belonging to the other Party (or any member of its Group).  Accordingly, at all times after the Effective Time, each Party authorizes the other Party (or any member of its Group) to receive and open all mail, correspondence, e-mail, packages and other communications received by such Party (or any member of its Group) and not unambiguously intended for such first Party, any member of such first Party’s Group or any of their respective officers, directors, employees or other agents, and to the extent that they do not relate to the business of the receiving Party, the receiving Party shall promptly deliver such mail, correspondence, e-mail, packages or other communications (or, in case the same relate to both businesses, copies thereof) to the other Party as provided for in Section 10.6.  The provisions of this Section 2.7(e) are not intended to, and shall not, be deemed to constitute an authorization by any Party (or any member of its Group) to permit the other to accept service of process on its (or its members’) behalf and no Party (or any member of its Group) is or shall be deemed to be the agent of the other Party (or any member of its Group) for service of process purposes.

 

Section 2.8.                       Transfer Documents.  In connection with, and in furtherance of, the Transfers of Assets and the acceptance and assumptions of Liabilities contemplated by this Agreement, the Parties shall execute, at or prior to the Effective Time, or after the Effective Time with respect to Section 2.7, by the appropriate entities, the Transfer Documents necessary to evidence the valid and effective assumption by the applicable Party (or any member of its Group) of its assumed Liabilities, and the valid Transfer to the applicable Party (or any member of its Group) of all rights, titles and interests in and to its accepted Assets, including the transfer of real property with quit claim deeds, as may be appropriate.

 

Section 2.9.                       Shared Contracts.

 

(a)                                 With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties as follows:

 

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(i)                                     first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be responsible for such Liability;

 

(ii)                                  second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the term of the Shared Contract, measured as of the date of allocation) under the relevant Shared Contract.  Notwithstanding the foregoing, each Party shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.

 

(b)                                 Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Infrastructurco or any member of the Infrastructurco Group, on the one hand, or Flowco or any member of the Flowco Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Infrastructurco, on the one hand, or Flowco, on the other hand, will use its respective commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other Party in as efficient a manner as can be effected with commercially reasonable efforts.

 

(c)                                  Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will be separated or assigned to a member of the Infrastructurco Group or Flowco Group, as applicable.  The Parties shall use their commercially reasonable efforts to separate the Shared Contracts which are identified on Schedule 2.9(c) into separate Contracts between the appropriate Third Party and either Flowco or a member of the Flowco Group or Infrastructurco or a member of the Infrastructurco Group.

 

(d)                                 The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of twelve (12) months following the Effective Time (with no obligation on the part of either Party to pay any costs or fees with respect to such assistance) in effecting the separation of such Shared Contracts as described above.

 

Section 2.10.                Further Assurances.

 

(a)                                 In addition to and without limiting the actions specifically provided for elsewhere in this Agreement, including Section 2.7, each of the Parties shall cooperate with each other and use commercially reasonable efforts, prior to, on and after the Effective Time, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements.

 

(b)                                 Without limiting the foregoing, each Party shall cooperate with the other Party, from and after the Effective Time, to execute and deliver, or use commercially reasonable efforts to cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer and/or assumption, and to take all such other actions as such Party may reasonably be requested to take by any other Party from time to time, consistent

 

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with the terms of this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of this Agreement and the Ancillary Agreements and the Transfers of the applicable Assets and the assumption of the applicable Liabilities and the other transactions contemplated hereby and thereby.

 

(c)                                  On or prior to the Distribution Date, Infrastructurco and Flowco in their respective capacities as direct or indirect stockholders of their respective Subsidiaries, shall each ratify any actions that are reasonably necessary or desirable to be taken by any Subsidiary of Infrastructurco or Subsidiary of Flowco, as the case may be, to effectuate the transactions contemplated by this Agreement and the Ancillary Agreements.

 

(d)                                 Notwithstanding anything herein to the contrary, neither Party is under any obligation to seek to obtain any Consent or Governmental Approval, except for any obligation to make the Agreed Consent Efforts to obtain the Agreed Consents, as determined in accordance with the proviso contained in Section 2.7(a).

 

Section 2.11.                Novation of Liabilities; Consents.

 

(a)                                 Other than with respect to any Flowco Group Performance Guarantee (which shall be subject to the terms of Section 2.12(a)) or any Infrastructurco Group Performance Guarantee (which shall be subject to the terms of Section 2.12(b)), as applicable, each Party, at the request of the other Party, shall use commercially reasonable efforts to obtain, or to cause to be obtained, any material Consent, release, substitution or amendment required to novate or assign all obligations under Contracts or other Liabilities for which a member of such Party’s Group and a member of the other Party’s Group are jointly or severally liable, or for which a member of the other Party is otherwise liable, and that do not constitute Liabilities of such other Party as provided in this Agreement, or to obtain in writing the unconditional release of all parties to such arrangements (other than any member of the Group who assumed or retained such Liability as set forth in this Agreement), so that, in any such case, the members of the applicable Group will be solely responsible for such Liabilities; provided, however, that no Party shall be obligated to pay any consideration therefor to any Third Party from whom any such Consent, substitution or amendment is requested (unless the other Party agrees to fully reimburse the requesting Party).

 

(b)                                 If the Parties are unable to obtain, or to cause to be obtained, any material Consent, release, substitution or amendment, the other Party or a member of such other Party’s Group shall continue to be bound by such Contract, license or other obligation that does not constitute a Liability of such other Party and, unless not permitted by Law or the terms thereof, as agent or subcontractor for such Party, the Party or member of such Party’s Group who assumed or retained such Liability as set forth in this Agreement (the “Liable Party”) shall pay, perform and discharge fully all the obligations or other Liabilities of such other Party or member of such other Party’s Group thereunder from and after the Effective Time.  The Liable Party shall indemnify each other Party and the members of such other Party’s Group and hold each of them harmless against any and all Liabilities arising in connection therewith; provided, that the Liable Party shall have no obligation to indemnify the other Party or any member of such other Party’s Group with respect to any matter to the extent that such other Party has engaged in any knowing violation of Law or fraud in connection therewith as determined by a court of competent jurisdiction in a final judgment that is not subject to appeal.  The other Party shall, without

 

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further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party or to another member of the Liable Party’s Group, all money, rights and other consideration received by it or any member of its Group in respect of such performance by the Liable Party (unless any such consideration is an Asset of such other Party pursuant to this Agreement).  If and when any such Consent, release, substitution or amendment shall be obtained or such agreement, lease, license or other rights or obligations shall otherwise become assignable or able to be novated, the other Party shall promptly assign, or cause to be assigned, all rights, obligations and other Liabilities thereunder of any member of such other Party’s Group to the Liable Party or to another member of the Liable Party’s Group without payment of any further consideration and the Liable Party, without the payment of any further consideration, shall assume such rights and obligations and other Liabilities.

 

Section 2.12.                Performance Guarantees.

 

(a)                                 With respect to any guarantee or other obligation for which any member of the Flowco Group is a guarantor of, or obligor for, any Infrastructurco Liability (“Flowco Group Performance Guarantee”), Infrastructurco shall indemnify and hold harmless the guarantor or obligor for any Indemnifiable Loss arising therefrom or relating thereto (in accordance with the provisions of Article VI) and shall, as agent or subcontractor for such guarantor or obligor, pay, perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor thereunder.

 

(b)                                 With respect to any guarantee or other obligation for which any member of the Infrastructurco Group is a guarantor of, or obligor for, any Flowco Liability (“Infrastructurco Group Performance Guarantee”), Flowco shall indemnify and hold harmless the guarantor or obligor for any Indemnifiable Loss arising therefrom or relating thereto (in accordance with the provisions of Article VI) and shall, as agent or subcontractor for such guarantor or obligor, pay, perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor thereunder.

 

(c)                                  Infrastructurco and Flowco shall cooperate, and Flowco shall use commercially reasonable efforts, to replace all letters of credit, foreign credit instruments, bank guarantees, surety bonds, performance bonds or analogous instruments issued by Third Parties that were obtained by or on the credit of the members of the Infrastructurco Group on behalf of or in favor of any member of the Flowco Group or the Flowco Business (or the beneficiaries relating thereto such as, without limitation, customers, suppliers or taxing authorities of the Flowco Business) (the “Infrastructurco Third Party Performance Support”) prior to or as promptly as practicable after the Effective Time with letters of credit, foreign credit instruments, bank guarantees, surety bonds, performance bonds or analogous instruments issued by Third Parties that are obtained by and on the credit of Flowco or a member of the Flowco Group as of the Effective Time.  With respect to any Infrastructurco Third Party Performance Support that remains outstanding after the Effective Time, Flowco shall indemnify and hold harmless the Infrastructurco Indemnitees for any Liabilities arising from or relating to such Infrastructurco Third Party Performance Support, including any fees in connection with the issuance and maintenance thereof and any funds drawn by (or for the benefit of), or disbursements made to, the Third Party issuers or the beneficiaries of such Infrastructurco Third Parties Performance Support in accordance with the terms thereof.

 

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(d)                                 If requested by a Party, any indemnification or reimbursement of any Liability with respect to any Flowco Group Performance Guarantee, Infrastructurco Group Performance Guarantee or Infrastructurco Third Party Performance Support (in each case, a “Performance Guarantee Obligation”) shall be made by the indemnifying or reimbursing Party in the currency in which payment was made (or is expected to be made) by the requesting Party (or member of its Group).  If any Party (or any member of its Group) receives a request to pay any Performance Guarantee Obligation from a Third Party, such Party shall use commercially reasonable efforts to promptly inform the other Party accordingly.  Each Party’s obligation to pay any Performance Guarantee Obligation and other indemnification obligations under this Section 2.12 shall be absolute, irrevocable and unconditional, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Performance Guarantee Obligation, or any term or provision therein, or (if any) underlying agreement, (ii) any draft or other document presented under a Performance Guarantee Obligation proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable issuer of the Performance Guarantee Obligation against presentation of a draft or other document that does not comply with the terms of such Performance Guarantee Obligation, (iv) failure by a Party to provide the other Party with the information contemplated by this Section 2.12, (v) any dispute as to whether or the amount of any Performance Guarantee Obligation was proper, or (vi) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.12(d), constitute a legal or equitable discharge of, or provide a right of setoff against, a Party’s obligations hereunder.

 

Section 2.13.                Disclaimer of Representations and Warranties.

 

(a)                                 EACH OF INFRASTRUCTURCO AND FLOWCO UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, NO PARTY TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED HEREBY OR THEREBY, IS REPRESENTING OR WARRANTING IN ANY WAY AS TO THE ASSETS, BUSINESSES OR LIABILITIES CONTRIBUTED, TRANSFERRED, DISTRIBUTED, OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR GOVERNMENTAL APPROVALS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, DISTRIBUTION, ASSIGNMENT, ASSUMPTION, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE OR ASSUME ANY LIABILITY UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF.  EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, ALL ASSETS ARE BEING TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM OF DEED OR CONVEYANCE WITHOUT

 

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WARRANTY) AND THE RESPECTIVE TRANSFEREES SHALL BEAR ALL ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS, CONTRACTS, OR JUDGMENTS ARE NOT COMPLIED WITH.  ALL WARRANTIES OF HABITABILITY, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARISING UNDER THE UNIFORM COMMERCIAL CODE (OR SIMILAR FOREIGN LAWS), ARE HEREBY DISCLAIMED.

 

(b)                                 Each of Infrastructurco and Flowco further understands and agrees that if the disclaimer of express or implied representations and warranties contained in Section 2.13(a) is held unenforceable or is unavailable for any reason under the Laws of any jurisdiction outside the United States or if, under the Laws of a jurisdiction outside the United States, both Infrastructurco or any member of the Infrastructurco Group, on the one hand, and Flowco or any member of the Flowco Group, on the other hand, are jointly or severally liable for any Infrastructurco Liability or any Flowco Liability, respectively, then, the Parties intend that, notwithstanding any provision to the contrary under the Laws of such foreign jurisdictions, the provisions of this Agreement and the Ancillary Agreements (including the disclaimer of all representations and warranties, allocation of Liabilities among the Parties and the members of their respective Groups, releases, indemnification and contribution of Liabilities) shall prevail for any and all purposes among the Parties and the members of their respective Groups.

 

(c)                                  Infrastructurco hereby waives compliance by itself and each and every member of the Infrastructurco Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Infrastructurco Assets to Infrastructurco or any member of the Infrastructurco Group.

 

(d)                                 Flowco hereby waives compliance by itself and each and every member of the Flowco Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Flowco Assets to Flowco or any member of the Flowco Group.

 

Section 2.14.                Financing Arrangements; Credit Agreement.  Prior to the Distribution Date, Flowco and Infrastructurco shall enter into the Financing Arrangements, on such terms and conditions as agreed by SPX (including the amounts that shall be borrowed by Flowco and Infrastructurco, respectively, pursuant to the Financing Arrangements and the interest rates and terms for such borrowings).  The Parties shall participate in the preparation of all materials and presentations as may be reasonably necessary to obtain funding pursuant to the Financing Arrangements, including rating agency presentations necessary to obtain the requisite ratings needed to obtain the financings under the Financing Arrangements.  The Parties agree that SPX shall be ultimately responsible for all out-of-pocket costs and expenses incurred by, and for reimbursement of such costs and expenses to, any member of the Infrastructurco Group or Flowco Group associated with negotiating, documenting and entering into the Financing Arrangements (but, for the avoidance of doubt, Flowco shall be responsible for all fees payable to its financing sources in connection with the Flowco Financing Arrangements).  Prior to the

 

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Distribution Date, SPX will use reasonable best efforts to take or cause to be taken all actions, and enter into such agreements and arrangements, as will be necessary to cause, as of the Distribution Date, (i) to terminate the Credit Agreement and cause SPX and its Subsidiaries to be fully and unconditionally released from all Liabilities in respect of the Credit Agreement (other than pursuant to those provisions thereof that by their express terms survive termination) and to cause all Security Interests thereunder or under agreements ancillary thereto to be fully and unconditionally released, (ii) to cause Flowco to be substituted for SPX as issuer under the Indenture, and (iii) otherwise to implement the Financing Arrangements.

 

Section 2.15.                Cash Contribution.  Immediately prior to the Effective Time, SPX will contribute to Flowco or such other member or members of the Flowco Group such amount of cash and cash equivalents as necessary (if any) so that, as of the Effective Time, the Flowco Group will have, in the aggregate, an amount of cash and cash equivalents of no less than the equivalent of $200,000,000 (as converted) in accordance with the regional allocation provisions set forth in Schedule 2.15.  All cash and cash equivalents held by any member of the Flowco Group as of the Effective Time will be a Flowco Asset and all cash and cash equivalents held by any member of the Infrastructurco Group as of the Effective Time will be an Infrastructurco Asset.

 

ARTICLE III

 

CERTAIN ACTIONS PRIOR TO THE DISTRIBUTION

 

Section 3.1.                       Reorganization.  The Parties agree to take, prior to the Distribution, all actions necessary, subject to the terms of this Agreement, to effectuate the Reorganization (such documentation necessary to effect the Reorganization, the “Reorganization Documents”) as set forth on Schedule 3.1 (the steps of the Reorganization being referred to herein as the “Reorganization Step Plan”), as the same may be updated by SPX from time to time.

 

Section 3.2.                       Certificate of Incorporation; Bylaws.  At or prior to the Effective Time, SPX shall, and shall cause Flowco to, take all necessary actions to adopt the amended and restated certificate of incorporation and amended and restated by-laws in the form filed by Flowco with the Commission as exhibits to the Form 10.

 

Section 3.3.                       Directors and Executive Officers.

 

(a)                                 At or prior to the Effective Time, SPX shall take all necessary action to (x) cause the Board of Directors of Flowco to consist of the individuals who are identified in the Form 10 (including the Information Statement) at the Effective Time as being directors of Flowco and (y) cause the executive officers of Flowco to consist of the individuals who are identified in the Form 10 (including the Information Statement) at the Effective Time as being the executive officers of Flowco.

 

(b)                                 At or prior to the Effective Time, SPX shall take all necessary action, including by obtaining resignations and appointing new officers or directors, as necessary, to (x) cause the Board of Directors of Infrastructurco to consist of the individuals who are identified by the Board of Directors of SPX as being the Board of Directors of Infrastructurco at the Effective Time and (y) cause the executive officers of Infrastructurco to consist of the individuals who are

 

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identified by the Board of Directors of SPX as being the executive officers of Infrastructurco at the Effective Time.

 

Section 3.4.                       Resignations.

 

(a)                                 Subject to Section 3.4(b), at or prior to the Effective Time, (i) SPX shall cause all its employees and any employees of its Affiliates who will not be a Flowco Employee immediately following the Effective Time to resign, or deliver to Flowco all instruments and other documents reasonably necessary to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the Flowco Group in which they serve, (ii) Flowco shall cause all Flowco Employees to resign, or deliver to Infrastructurco all instruments and other documents reasonably necessary to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the Infrastructurco Group in which they serve, (iii) SPX shall cause all its employees and any employees of its Affiliates who will not be an Infrastructurco Employee immediately following the Effective Time to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the Infrastructurco Group in which they serve, and (iv) Infrastructurco shall cause all Infrastructurco Employees to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the Flowco Group in which they serve.

 

(b)                                 No Person shall be required by any Party to resign from any position or office with another Party if such Person is disclosed in the Information Statement as the Person who is to hold such position or office following the Distribution.

 

Section 3.5.                       Ancillary Agreements.  At or prior to the Effective Time, Infrastructurco and Flowco shall enter into, and/or (where applicable) shall cause a member or members of their respective Groups to enter into, the Ancillary Agreements.

 

ARTICLE IV

 

THE DISTRIBUTION

 

Section 4.1.                       Exchange of Flowco Assets for Flowco Stock and Debt Securities; Debt Exchange.  On or prior to the Distribution Date and in connection with the Separation:

 

(a)                                 as consideration for the transfer of the Flowco Assets to Flowco, Flowco shall issue to SPX:

 

(i)                                     such number of shares of Flowco Common Stock (or SPX and Flowco shall take or cause to be taken such other appropriate actions to ensure that SPX has the requisite number of shares of Flowco Common Stock) as may be requested by SPX in order to effect the Distribution, which shares as of the date of issuance shall represent (together with such shares previously held by SPX) all of the issued and outstanding shares of Flowco Common Stock; and

 

(ii)                                  the Flowco Global Note; and

 

(b)                                 SPX shall deliver the Flowco Global Note to the Trustee (as defined in the Indenture), as custodian for the Depositary (as defined in the Indenture), whereupon the Trustee, as custodian for the Depositary, shall deliver the SPX Global Note to SPX.

 

(c)                                  For ease of administration, the issuance and delivery of the Flowco Global Note required by Sections 4.1(a)(ii) and 4.1(b) may be effectuated by Flowco’s delivery, at SPX’s discretion and on SPX’s behalf, of the Flowco Global Note directly to the Trustee, as custodian for the Depositary. In addition, Flowco may, at SPX’s direction and on SPX’s behalf, take any other actions reasonably necessary to effectuate such delivery.

 

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(d)                                 Approximately $440,000,000, or such other amount as may be agreed to by Flowco and SPX prior to the Distribution, of the proceeds of the Flowco Financing Arrangements shall be used, at SPX’s direction, to retire an equal amount of SPX’s outstanding indebtedness under the Credit Agreement; provided, that any Intercompany Account arising from any such payment by Flowco of the indebtedness of SPX shall be assumed by Flowco, effective at the Effective Time, as a Flowco Liability pursuant to the provisions of Section 2.3(b).

 

Section 4.2.                       Distribution.  Subject to the conditions and other terms contained in this Article IV, SPX will cause the Agent on the Distribution Date to make the Distribution, including by crediting the appropriate number of shares of Flowco Common Stock to book entry accounts for each holder of SPX Common Stock or designated transferee or transferees of such holder of SPX Common Stock.  For stockholders of SPX who own SPX Common Stock through a broker or other nominee, their shares of Flowco Common Stock will be credited to their respective accounts by such broker or nominee.  No action by any holder of SPX Common Stock on the Record Date shall be necessary for such stockholder (or such stockholder’s designated transferee or transferees) to receive the applicable number of shares of Flowco Common Stock such stockholder is entitled to in the Distribution.

 

Section 4.3.                       Reserved.

 

Section 4.4.                       Actions in Connection with the Distribution.

 

(a)                                 Flowco shall file such amendments and supplements to the Form 10 as SPX may reasonably request, and such amendments as may be necessary in order to cause the same to become and remain effective as required by Law, including filing such amendments and supplements to the Form 10 and Information Statement as may be required by the Commission or federal, state or foreign securities Laws.  SPX shall mail to the holders of SPX Common Stock, at such time on or prior to the Distribution Date as SPX shall determine, the Information Statement included in the Form 10, as well as any other information concerning Flowco, Flowco’s business, operations and management, the Separation and such other matters as SPX shall reasonably determine are necessary and as may be required by Law.

 

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(b)                                 Flowco shall also prepare, file with the Commission and cause to become effective any registration statements or amendments thereof required to effect the establishment of, or amendments to, any employee benefit and other plans or as otherwise necessary or appropriate in connection with the transactions contemplated by this Agreement, or any of the Ancillary Agreements, including any transactions related to financings or other credit facilities.  Promptly after receiving a request from SPX, Flowco shall prepare and, in accordance with applicable Law, file with the Commission any such documentation that SPX determines is necessary or desirable to effectuate the Distribution, and SPX and Flowco shall each use commercially reasonable efforts to obtain all necessary approvals from the Commission with respect thereto as soon as practicable.

 

(c)                                  Promptly after receiving a request from SPX, Flowco shall prepare and file, and shall use commercially reasonable efforts to have approved and made effective, an application for the original listing on the NYSE of the Flowco Common Stock to be distributed in the Distribution, subject to official notice of distribution.

 

Section 4.5.                       Sole and Absolute Discretion of SPX.  Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, SPX shall, in its sole and absolute discretion, determine the Distribution Date and all terms of the Distribution, including the form, structure and terms of any transactions to effect the Distribution and the timing of and conditions to the consummation thereof.  In addition, SPX may, in accordance with Section 10.10, at any time prior to the Distribution Date and from time to time until the completion of the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution, including by accelerating or delaying the timing of the consummation of all or part of the Distribution.  None of Flowco, any other member of the Flowco Group, any Flowco Employee or any Third-Party shall have any right or claim to require the consummation of the Separation or the Distribution, each of which shall be effected at the sole and absolute discretion of the Board of Directors of SPX.

 

Section 4.6.                       Conditions to Distribution.  Subject to Section 4.5, the following are conditions to the consummation of the Distribution (which, to the extent permitted by applicable Law, may be waived, in whole or in part, by SPX in its sole and absolute discretion).  The conditions are for the sole benefit of SPX and shall not give rise to or create any duty on the part of SPX or the Board of Directors of SPX to waive or not waive any such condition.  Any determination made by SPX prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 4.6 shall be conclusive and binding on the Parties hereto.

 

(a)                                 The Form 10 shall have been declared effective by the Commission, with no stop order in effect with respect thereto, and the Information Statement shall have been mailed to SPX’s stockholders as of the Record Date;

 

(b)                                 The Flowco Common Stock to be delivered to the SPX stockholders in the Distribution shall have been approved for listing on the NYSE, subject to official notice of distribution;

 

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(c)                                  SPX shall have obtained from Fried, Frank, Harris, Shriver & Jacobson LLP (or other outside tax counsel of national standing) an opinion that is consistent with SPX’s intent that the separation be tax-free to SPX and SPX shareholders for U.S. federal income tax purposes;

 

(d)                                 All permits, registrations and consents required under the securities or blue sky Laws of states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution shall have been obtained and be in full force and effect;

 

(e)                                  No order, injunction or decree issued by any Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Distribution or any of the transactions related thereto, including the Transfer of Assets and assumption of Liabilities pursuant to Article II, shall be in effect, and no other event outside the control of SPX shall have occurred or failed to occur that prevents the consummation of the Distribution or any of the related transactions;

 

(f)                                   The Reorganization shall have been effectuated in accordance with the Reorganization Step Plan;

 

(g)                                  Each of the Ancillary Agreements shall have been duly executed and delivered by the parties thereto;

 

(h)                                 All Governmental Approvals necessary to consummate the Distribution shall have been obtained and be in full force and effect;

 

(i)                                     The Flowco Financing Arrangements and the Infrastructurco Financing Arrangements shall have been executed and delivered and the proceeds thereof shall have been (or substantially concurrently will be) received by Flowco and Infrastructurco, as applicable;

 

(j)                                    The Board of Directors of SPX shall have received an opinion of a solvency opinion provider of national standing, in form and substance satisfactory to the Board of Directors of SPX (in its sole and absolute discretion) with respect to the solvency, capital adequacy and sufficiency of surplus of each of Infrastructurco and Flowco after giving effect to the Separation; and

 

(k)                                 No events or developments shall have occurred or exist that, in the judgment of the Board of Directors of SPX, in its sole and absolute discretion, make it inadvisable to effect the Distribution or the other transactions contemplated hereby, or would result in the Distribution or the other transactions contemplated hereby not being in the best interest of SPX or its stockholders.

 

ARTICLE V

 

CERTAIN COVENANTS

 

Section 5.1.                       Legal Name.  From and after the Effective Time until the date that is twenty (20) years after the Distribution Date, SPX shall not change its corporate name without the prior written consent of Flowco.

 

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Section 5.2.                       Auditors and Audits; Financial Statements and Accounting.

 

(a)                                 Each Party agrees that, until March 31, 2017, and in any event solely for the purpose of the preparation and audit of each of the Party’s financial statements for any of the years ended December 31, 2013, 2014 and 2015, the preparation of each of the Party’s financial statements for any of the quarterly periods during the years ended December 31, 2013, 2014 and 2015, the printing, filing and public dissemination of such financial statements, the audit of each Party’s internal control over financial reporting related to each of the Party’s financial statements for any of the years ended December 31, 2013, 2014 and 2015 and such Party’s management’s assessment thereof, and each Party’s management’s assessment of such Party’s disclosure controls and procedures related to the financial statements for any of the years ended, and the quarterly periods ended during, the years ended December 31, 2013, 2014 and 2015:

 

(i)                                     Annual Financial Statements.  Each Party shall provide to the other Party on a timely basis all information reasonably required to meet such other Party’s schedule for the preparation, printing, filing, and public dissemination of its annual financial statements, for management’s assessment of and conclusion with respect to, the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K and for statutory account filings for any of its foreign Subsidiaries and, to the extent applicable to such other Party, (A) its auditor’s audit report of its internal control over financial reporting and (B) management’s assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 and the Commission’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder (such assessments and audit being referred to as the “Internal Control Audit and Management Assessments”).  Without limiting the generality of the foregoing, each Party will provide all required financial and other Information with respect to itself and the members of its Group to its auditors in a sufficient and reasonable time and in sufficient detail to permit its auditors to take all steps and perform all reviews necessary to provide sufficient assistance to the other Party’s auditors with respect to information to be included or contained in such other Party’s annual financial statements or statutory account filings for its foreign Subsidiaries and to permit such other Party’s auditors and management to complete their respective auditor’s report on Internal Control Audit and Management Assessments, to the extent applicable to such Party.

 

(ii)                                  Quarterly Financial Statements.  Each Party shall provide to the other Party on a timely basis all information reasonably required to meet such other Party’s schedule for the preparation, printing, filing, and public dissemination of its quarterly financial statements, for management’s conclusions with respect to the effectiveness of its disclosure controls and procedures and changes to its internal control over financial reporting in accordance with Items 307 and 308(c), respectively, of Regulation S-K and for statutory account filings for any of its foreign Subsidiaries.

 

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(iii)                               Access to Personnel and Records.  Each audited Party shall authorize, and use its reasonable best efforts to cause, its respective auditors to make available to the other Party’s auditors (each such other Party’s auditors, collectively, the “Other Parties’ Auditors”) both the personnel who performed or are performing the annual audits of such audited party (each such Party with respect to its own audit, the “Audited Party”) and work papers related to the annual audits of such Audited Party, in all cases within a reasonable time prior to such Audited Party’s expected auditors’ opinion date, so that the Other Parties’ Auditors are able to perform the procedures they consider necessary to take responsibility for the work of the Audited Party’s auditors as it relates to their auditors’ report on such other Party’s financial statements, all within sufficient time to enable such other Party to meet its timetable for the printing, filing and public dissemination of its annual financial statements.  Each Party shall make available to the Other Parties’ Auditors and management its personnel and Records in a reasonable time prior to the Other Parties’ Auditors’ opinion date and other Parties’ management’s assessment date so that the Other Parties’ Auditors and other Parties’ management are able to perform the procedures they consider necessary to conduct their respective Internal Control Audit and Management Assessments.

 

(b)                                 Amended Financial Reports.  In the event a Party restates any of its financial statements that includes such Party’s audited or unaudited financial statements or statutory account filings for such Party’s foreign Subsidiaries with respect to any balance sheet date or period of operation between January 1, 2010 and December 31, 2015, such Party will deliver to the other Party a substantially final draft, as soon as the same is prepared, of any report to be filed by such first Party with the Commission or the appropriate Governmental Entity that includes such restated audited or unaudited financial statements or statutory account filing (the “Amended Financial Reports”); provided, however, that such first Party may continue to revise its Amended Financial Report prior to its filing thereof with the Commission or appropriate Governmental Entity, which changes will be delivered to the other Party as soon as reasonably practicable; provided, further, however, that such first Party’s financial personnel will actively consult with the other Party’s financial personnel regarding any changes which such first Party may consider making to its Amended Financial Report and related disclosures prior to the anticipated filing of such report with the Commission or other Governmental Entity, with particular focus on any changes which would have an effect upon the other Party’s financial statements or related disclosures.  Each Party will reasonably cooperate with, and permit and make any necessary employees available to, the other Party and the Other Parties’ Auditors, in connection with the other Party’s preparation of any Amended Financial Reports.

 

(c)                                  Financials; Outside Auditors.  If any Party or member of its respective Group is required, pursuant to Rule 3-09 of Regulation S-X or otherwise, to include in its Exchange Act filings audited financial statements or other information of the other Party or member of the other Party’s Group, the other Party shall use its commercially reasonable efforts (i) to provide such audited financial statements or other information, and (ii) to cause its outside auditors to consent to the inclusion of such audited financial statements or other information in the Party’s Exchange Act filings.

 

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(d)                                 Third Party Agreements.  Nothing in this Section 5.2 shall require any Party to violate any Contract or arrangement with any Third Party regarding the confidentiality of confidential and proprietary information relating to that Third Party or its business; provided, however, that in the event that a Party is required under this Section 5.2 to disclose any such information, such Party shall use commercially reasonable efforts to seek to obtain such Third Party’s consent to the disclosure of such information.  The Parties also acknowledge that the Other Parties’ Auditors are subject to contractual, legal, professional and regulatory requirements which such auditors are responsible for complying therewith.

 

Section 5.3.                       No Restrictions on Corporate Opportunities.

 

(a)                                 In the event that Flowco or any other member of the Flowco Group, or any director or officer of Flowco or any other member of the Flowco Group, acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both Flowco or any other member of the Flowco Group and Infrastructurco or any other member of the Infrastructurco Group, subsequent to the Effective Date, neither Flowco nor any other member of the Flowco Group, nor any director or officer of Flowco or any other member of the Flowco Group, shall have any duty to communicate or present such corporate opportunity to Infrastructurco or any other member of the Infrastructurco Group and shall not be liable to Infrastructurco or any other member of the Infrastructurco Group or to Infrastructurco’s stockholders for breach of any fiduciary duty as a stockholder of Infrastructurco or an officer or director thereof by reason of the fact that Flowco any other member of the Flowco Group pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another Person, or does not present such corporate opportunity to Infrastructurco or any other member of the Infrastructurco Group.

 

(b)                                 In the event that Infrastructurco or any other member of the Infrastructurco Group, or any director or officer of Infrastructurco or any other member of the Infrastructurco Group, acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both Infrastructurco or any other member of the Infrastructurco Group and Flowco or any other member of the Flowco Group, subsequent to the Effective Date, neither Infrastructurco nor any other member of the Infrastructurco Group, nor any director or officer of Infrastructurco or any other member of the Infrastructurco Group, shall have any duty to communicate or present such corporate opportunity to Flowco or any other member of the Flowco Group and shall not be liable to Flowco or any other member of the Flowco Group or to Flowco’s stockholders for breach of any fiduciary duty as a stockholder of Flowco or an officer or director thereof by reason of the fact that Infrastructurco or any other member of the Infrastructurco Group pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another Person, or does not present such corporate opportunity to Flowco or any other member of the Flowco Group.

 

(c)                                  For the avoidance of doubt, to the extent that any person who is a director or officer of Flowco or any other member of the Flowco Group is also a director or officer of Infrastructurco or any other member of the Infrastructurco Group, such person shall have no duty to communicate or present any corporate opportunity of which he or she acquires knowledge to Infrastructurco or any other member of the Infrastructurco Group and shall not be liable to Infrastructurco or any other member of the Infrastructurco Group or to Infrastructurco’s stockholders for breach of any fiduciary duty as an officer or director of Infrastructurco by

 

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reason of the fact that Flowco or any other member of the Flowco Group pursues or acquires such corporate opportunity, directs such corporate opportunity to another Person, or does not present such corporate opportunity to Infrastructurco or any other member of the Infrastructurco Group, unless such corporate opportunity is expressly offered to such person in writing solely in his or her capacity as a director or officer of Infrastructurco or any other member of the Infrastructurco Group.

 

(d)                                 For the purposes of this Section 5.3, “corporate opportunities” of Flowco or any other member of the Flowco Group shall include, but not be limited to, business opportunities that are, by their nature, in a line of business of Flowco or any other member of the Flowco Group, including the Flowco Business, are of practical advantage to them and are ones in which Flowco or any other member of the Flowco Group have an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of Infrastructurco or any other member of the Infrastructurco Group or any of their officers or directors will be brought into conflict with that of Flowco or any other member of the Flowco Group, and “corporate opportunities” of Infrastructurco or any other member of the Infrastructurco Group shall include, but not be limited to, business opportunities that are, by their nature, in a line of business of Infrastructurco or any other member of the Infrastructurco Group, including the Infrastructurco Business, are of practical advantage to them and are ones in which Infrastructurco or any other member of the Infrastructurco Group have an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of Flowco or any other member of the Flowco Group or any of their officers or directors will be brought into conflict with that of Infrastructurco or any other member of the Infrastructurco Group.

 

ARTICLE VI

 

RELEASES AND INDEMNIFICATION

 

Section 6.1.                       Release of Pre-Distribution Claims.

 

(a)                                 Except (i) as provided in Section 6.1(b), (ii) as may be otherwise provided in any Ancillary Agreement and (iii) for any matter for which any Party is entitled to indemnification or contribution pursuant to this Article VI, each Party, on behalf of itself and each member of its respective Group, their respective Affiliates and all Persons who at any time prior to the Effective Time were directors, officers, agents or employees of any member of their respective Group (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, and solely for the benefit of the other Party, do hereby remise, release and forever discharge the other Party and the other members of such other Parties’ Group, their respective Affiliates and all Persons who at any time prior to the Effective Time were stockholders, directors, officers, agents or employees of any member of such other Parties’ Group (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, including for fraud, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed at or before the Effective Time, including in connection with all activities to implement the

 

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Distribution, the Separation and any of the other transactions contemplated hereunder and under any of the Ancillary Agreements.

 

(b)                                 Nothing contained in Section 6.1(a) shall impair or otherwise affect any right of any Party, and as applicable, a member of the Party’s Group, to enforce this Agreement, any Ancillary Agreement or any agreements, arrangements, commitments or understandings unrelated to the Separation and Distribution and explicitly contemplated in this Agreement or any Ancillary Agreement to continue in effect after the Effective Time.  In addition, nothing contained in Section 6.1(a) shall release any Person from:

 

(i)                                     any Liability assumed, transferred by, or assigned or allocated to, a Party or a member of such Party’s Group pursuant to or contemplated by this Agreement or any Ancillary Agreement including (A) with respect to Infrastructurco, any Infrastructurco Liability, and (B) with respect to Flowco, any Flowco Liability;

 

(ii)                                  any Liability provided in or resulting from any other Contract or understanding that is entered into after the Effective Time between one Party (and/or a member of such Party’s Group), on the one hand, and the other Party (and/or a member of such Party’s Group), on the other hand;

 

(iii)                               any Liability that the Parties may have with respect to indemnification or contribution pursuant to this Agreement or any Ancillary Agreement, including in respect of claims brought against the Parties (or members of their respective Groups) by any Third Party, which Liability shall be governed by the provisions of this Article VI and, if applicable, the appropriate provisions of the Ancillary Agreements;

 

(iv)                              any Liability with respect to any Intercompany Accounts that survive the Effective Time pursuant to Section 2.4(b); and

 

(v)                                 any Liability the release of which would result in a release of any Person other than the Persons released in Section 6.1(a); provided that the Parties agree not to bring any Action or permit any other member of their respective Group to bring any Action against a Person released in Section 6.1(a) with respect to such Liability.

 

In addition, nothing contained in Section 6.1(a) shall release any member of the Infrastructurco Group or Flowco Group from honoring its existing obligations to indemnify any director, officer or employee of the Infrastructurco Group or Flowco Group who was a director, officer or employee of SPX or any of its Affiliates at or prior to the Effective Time, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was entitled to such indemnification pursuant to obligations existing prior to the Effective Time; it being understood that if the underlying circumstances or obligation giving rise to such Action relates to the Flowco Business or is a Flowco Liability, as between Infrastructurco and Flowco, Flowco shall be responsible for such Liability in accordance with the provisions set forth in this Article VI and if the underlying circumstances or obligation giving rise to such Action relates to the Infrastructurco Business or is a Infrastructurco Liability, as between

 

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Infrastructurco and Flowco, Infrastructurco shall be responsible for such Liability in accordance with the provisions set forth in this Article VI.

 

(c)                                  Each Party shall not make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or indemnification, against the other Party or any member of any other Party’s Group, or any other Person released pursuant to Section 6.1(a), with respect to any and all Liabilities released pursuant to Section 6.1(a).

 

(d)                                 It is the intent of each Party, by virtue of the provisions of this Section 6.1, to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Effective Time, whether known or unknown, between or among one Party and/or a member of such Party’s Group, on the one hand, and the other Party and/or a member of such other Party’s Group, on the other hand (including any contractual agreements or arrangements existing or alleged to exist between or among any such members on or before the Effective Time), except as specifically set forth in Section 6.1(a) and 6.1(b).

 

(e)                                  If any Person associated with a Party (including any director, officer or employee of a Party) initiates an Action with respect to claims released by this Section 6.1, the Party with which such Person is associated shall be responsible for the fees and expenses of counsel of the other Party and such other Party shall be indemnified for all Liabilities incurred in connection with such Action in accordance with the provisions set forth in this Article VI.

 

(f)                                   At any time, at the request of any Party, each Party shall cause each member of its respective Group and to the extent practicable each other Person on whose behalf it released Liabilities pursuant to this Section 6.1 to execute and deliver releases reflecting the provisions hereof.

 

Section 6.2.                       Indemnification by Infrastructurco.  Except as otherwise specifically set forth in any provision of this Agreement or any Ancillary Agreement, following the Effective Time, Infrastructurco shall indemnify, defend and hold harmless the Flowco Indemnitees from and against any and all Indemnifiable Losses arising out of, by reason of or otherwise in connection with (i) the Infrastructurco Liabilities, including the failure of any member of the Infrastructurco Group or any other Person to pay, perform or otherwise discharge any Infrastructurco Liability in accordance with its respective terms, whether prior to, on or after the Effective Time, or (ii) any breach by any member of the Infrastructurco Group of any provision of this Agreement or any Ancillary Agreement, unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder.  Following the Effective Time, without limiting the generality of the foregoing, Infrastructurco shall indemnify, defend and hold harmless the Flowco Indemnitees from and against any and all Indemnifiable Losses to the extent set forth on Schedule 6.2.

 

Section 6.3.                       Indemnification by Flowco.  Except as otherwise specifically set forth in any provision of this Agreement or of any Ancillary Agreement, Flowco shall indemnify, defend

 

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and hold harmless the Infrastructurco Indemnitees from and against any and all Indemnifiable Losses arising out of, by reason of or otherwise in connection with (i) the Flowco Liabilities or the Notes, including the failure of any member of the Flowco Group or any other Person to pay, perform or otherwise discharge any Flowco Liability or the Notes in accordance with its respective terms, whether prior to, on or after the Effective Time or (ii) any breach by Flowco or any member of the Flowco Group of any provision of this Agreement or any Ancillary Agreement, unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder.  Following the Effective Time, without limiting the generality of the foregoing, Flowco shall indemnify, defend and hold harmless the Infrastructurco Indemnitees from and against any and all Indemnifiable Losses to the extent set forth on Schedule 6.3.

 

Section 6.4.                       Procedures for Indemnification.

 

(a)                                 An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement or any Ancillary Agreement (other than a Third Party Claim which shall be governed by Section 6.4(b)), as promptly as practicable, stating the amount of the Indemnifiable Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.

 

(b)                                 If a claim or demand (including the commencement of an Action) is made against a Infrastructurco Indemnitee or a Flowco Indemnitee (each, an “Indemnitee”) by any Third Party as to which such Indemnitee is or may be entitled to indemnification pursuant to this Agreement or any Ancillary Agreement (a “Third Party Claim”), such Indemnitee shall notify the Party which is or may be required pursuant to this Article VI or pursuant to any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail (which may be satisfied by providing copies of all notices and documents received by the Indemnitee relating to the Third Party Claim), of the Third Party Claim promptly (and in any event within ten (10) Business Days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that the failure to provide notice of any such Third Party Claim pursuant to this sentence shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.

 

(c)                                  Other than in the case of a Liability being managed by a Party in accordance with any Ancillary Agreement, an Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and seek to settle or compromise any Third Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the applicable Indemnitees, if it gives notice of its intention to do so to the applicable Indemnitees within thirty (30) days of the receipt of such notice from such Indemnitees.  After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or

 

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settlement thereof, at its own expense and, in any event, shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent Information, materials and information in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party.  In the event of a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s), or in the event that any Third Party Claim seeks equitable relief which would restrict or limit the future conduct of the Indemnitee’s business or operations, such Indemnitee(s) shall be entitled to retain, at the Indemnifying Party’s expense, separate counsel and to participate in (but not control) the defense, compromise, or settlement of that portion of the Third Party Claim that involves such conflict of interest or seeks equitable relief with respect to the Indemnitee(s).

 

(d)                                 If an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnitee of its election as provided in Section 6.4(c), such Indemnitee may defend such Third Party Claim at the cost and expense of the Indemnifying Party.  If the Indemnitee is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnitee in such defense and make available to the Indemnitee all witnesses, pertinent Information, material and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee.

 

(e)                                  Unless the Indemnifying Party has failed to assume the defense of the Third Party Claim in accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.  If an Indemnifying Party has failed to assume the defense of the Third Party Claim within the time period specified in clause (c) above, it shall not be a defense to any obligation to pay any amount in respect of such Third Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not approve of the quality or manner of the defense thereof or that such Third Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.

 

(f)                                   In the case of a Third Party Claim, no Indemnifying Party shall consent to entry of any judgment or enter into any settlement of the Third Party Claim without the consent of the Indemnitee, which consent may not be unreasonably withheld, unless such settlement or compromise is solely for monetary damages, does not involve any finding or determination of wrongdoing or violation of Law by the Indemnitee and provides for a full, unconditional and irrevocable release of the Indemnitee from all Liability in connection with the Third Party Claim.

 

(g)                                  Except as otherwise provided in Section 10.19, absent actual and intentional fraud by an Indemnifying Party, the indemnification provisions of this Article VI shall be the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or losses resulting from any breach of this Agreement (including with respect to monetary or compensatory damages or losses arising out of or relating to, as the case may be, any Flowco Liability or Infrastructurco Liability), and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the foregoing other than under this Article VI against any Indemnifying Party.  The remedies

 

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provided in this Article VI shall be cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies against any Indemnifying Party.

 

(h)                                 Notwithstanding the foregoing, to the extent any Ancillary Agreement provides procedures for indemnification that differ from the provisions set forth in this Section 6.4, the terms of the Ancillary Agreement will govern.

 

(i)                                     Any Indemnitee that has made a claim for indemnification pursuant to this Section 6.4 shall use commercially reasonable efforts to mitigate any Indemnifiable Losses in respect thereof.

 

(j)                                    The provisions of this Article VI shall apply to Third Party Claims that are already pending or asserted as well as Third Party Claim brought or asserted after the date of this Agreement.  There shall be no requirement under this Section 6.4 to give a notice with respect to any Third Party Claim that exists as of the Effective Time.  The Parties acknowledge that Liabilities for Actions (regardless of the parties to the Actions) may be partly Infrastructurco Liabilities and partly Flowco Liabilities.  If the Parties cannot agree on the allocation of any such Liabilities for Actions, they shall resolve the matter pursuant to the procedures set forth in Article VIII.  Neither Party shall file Third Party claims or cross-claims against the other Party or the members of its Group in an Action in which a Third Party Claim is being resolved.

 

Section 6.5.                       Indemnification Payments.  Indemnification required by this Agreement, including this Article VI, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or an Indemnifiable Loss or Liability incurred.

 

Section 6.6.                       Additional Matters; Survival of Indemnities.

 

(a)                                 The indemnity and contribution agreements contained in this Agreement, including this Article VI¸ shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnitee; and (ii) the knowledge by the Indemnitee of Liabilities for which it might be entitled to indemnification or contribution hereunder.

 

(b)                                 The rights and obligations of each Party and their respective Indemnitees relating to indemnity and contribution under this Agreement, including this Article VI, shall survive (i) the sale or other transfer by any Party or its Affiliates of any Assets or businesses or the assignment by it of any and all Liabilities and (ii) any merger, consolidation, business combination, sale of all or substantially all of the Assets, restructuring, recapitalization, reorganization or similar transaction involving either Party or any member of its Group.

 

Section 6.7.                       Indemnification Obligations Net of Insurance Proceeds; Contribution.

 

(a)                                 Insurance Proceeds.  The Parties intend that any Liability subject to indemnification or contribution pursuant to this Agreement or any Ancillary Agreement shall be reduced by any Insurance Proceeds or other amounts actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) from any Person by or on behalf of the Indemnitee in respect of any indemnifiable Liability.  Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee shall be reduced by any Insurance

 

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Proceeds or any other amounts theretofore actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) by or on behalf of the Indemnitee in respect of the related Liability.  If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party in respect of any Liability (an “Indemnity Payment”) and subsequently receives Insurance Proceeds or any other amounts in respect of the related Liability, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or such other amounts (net of any out-of-pocket costs or expenses incurred in the collection thereof) had been received, realized or recovered before the Indemnity Payment was made.

 

(b)                                 Insurers and Other Third Parties Not Relieved.  The Parties hereby agree that an insurer or other Third Party that would otherwise be obligated to pay any amount shall not be relieved of the responsibility with respect thereto or have any subrogation rights with respect thereto by virtue of any provision contained in this Agreement or any Ancillary Agreement, and that no insurer or any other Third Party shall be entitled to a “windfall” (e.g., a benefit they would not be entitled to receive in the absence of the indemnification or release provisions) by virtue of any provision contained in this Agreement or any Ancillary Agreement.  Each Party shall use commercially reasonable efforts to collect or recover, or allow the Indemnifying Party to collect or recover, any Insurance Proceeds that may be collectible or recoverable respecting the Liabilities for which indemnification may be available under this Agreement, including this Article VI.  Notwithstanding the foregoing, an Indemnifying Party may not delay making any indemnification payment required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any proceeding to collect or recover Insurance Proceeds, and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement.

 

(c)                                  Contribution.  If the indemnification provided for in this Article VI is unavailable for any reason to an Indemnitee in respect of any Indemnifiable Loss, then the Indemnifying Party shall, in accordance with this Section 6.7(c), contribute to the Losses incurred, paid or payable by such Indemnitee as a result of such Indemnifiable Loss in such proportion as is appropriate to reflect the relative fault of Flowco and each other member of the Flowco Group, on the one hand, and Infrastructurco and each other member of the Infrastructurco Group, on the other hand, in connection with the circumstances which resulted in such Indemnifiable Loss.  With respect to any Losses arising out of or related to information contained in the Distribution Disclosure Documents or other securities law filing, the relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact relates to information supplied by the Flowco Business or a member of the Flowco Group, on the one hand, or the Infrastructurco Business or a member of the Infrastructurco Group, on the other hand.  All other information in the Distribution Disclosure Documents shall be deemed supplied by the members of the Flowco Group.  With respect to Pre-Separation Disclosure, all disclosure shall be deemed supplied by the Infrastructurco Business or the members of the Infrastructurco Group.

 

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Section 6.8.        Characterization of Indemnification and Reimbursement Payments.  For all Tax purposes, Infrastructurco and Flowco agree to treat any indemnification or reimbursement or other similar payment made hereunder (other than any payment of interest accruing after the Distribution Date) as an adjustment to the amount of Flowco Assets transferred by the Infrastructurco Group to the Flowco Group in connection with the Separation.

 

ARTICLE VII

 

CONFIDENTIALITY; ACCESS TO INFORMATION

 

Section 7.1.        Provision of Corporate Records.  Other than in circumstances in which indemnification is sought pursuant to Article VI (in which event the provisions of such Article will govern) and without limiting the applicable provisions of Article VI, and subject to appropriate restrictions for classified, privileged or Confidential Information and subject further to any restrictions or limitations contained in Section 5.2 or elsewhere in this Article VII:

 

(a)           After the Effective Time, upon the prior written request by Flowco for Information which relates to (x) any member of the Flowco Group or the conduct of the Flowco Business (including Flowco Assets and Flowco Liabilities), as the case may be, up to the Effective Time, or (y) any Ancillary Agreement, Infrastructurco shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Flowco has a reasonable need for such originals) in the possession or control of Infrastructurco or any of its Affiliates.

 

(b)           After the Effective Time, upon the prior written request by Infrastructurco for Information which relates to (x) any member of the Infrastructurco Group or the conduct of the Infrastructurco Business (including Infrastructurco Assets and Infrastructurco Liabilities), as the case may be, up to the Effective Time, or (y) any Ancillary Agreement, Flowco shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Infrastructurco has a reasonable need for such originals) in the possession or control of Flowco or any of its Affiliates.

 

Section 7.2.        Access to Information.

 

(a)           Other than in circumstances in which indemnification is sought pursuant to Article VI (in which event the provisions of such Article will govern) and without limiting the applicable provisions of Article VI, and subject to any restrictions or limitations contained in Section 5.2 or elsewhere in this Article VII, from and after the Effective Time, each of Infrastructurco and Flowco shall afford to the other and its authorized accountants, counsel and other designated representatives reasonable access during normal business hours, subject to appropriate restrictions for classified, privileged or confidential information and to the requirements of any applicable Law, to the personnel, properties, and Information of such Party and its Subsidiaries insofar as such access is reasonably required by the other Party, and reasonably relates to (x) such other Party or the conduct of its business prior to the Effective Time or (y) any Ancillary Agreement; provided, however, in the event that a Party determines that any such access or the provision of any such information (including information requested under Section 5.2 or Section 7.1) would be commercially detrimental in any material respect, violate any Law or Contract with a Third Party or waive any attorney-client privilege, the work

 

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product doctrine or other applicable privilege, the Parties shall take all reasonable measures (and, to the extent applicable, shall use commercially reasonable efforts to obtain the Consent from any Third Party required to make such disclosure without violating a Contract with a Third Party) to permit compliance with such information request in a manner that avoids any such harm, violation or consequence.  Each of Infrastructurco and Flowco shall inform their respective officers, employees, agents, consultants, advisors, authorized accountants, counsel and other designated representatives who have or have access to the other Party’s Confidential Information or other information provided pursuant to Section 5.2 or this Article VII of their obligation to hold such information confidential in accordance with the provisions of this Agreement.

 

(b)           Notwithstanding anything herein to the contrary, from and after the Effective Time until the end date specified in a written notice delivered by one Party to the other Party (the “Shared Access Period”), Infrastructurco agrees to cooperate with Flowco and the members of the Flowco Group to enable Flowco and the members of the Flowco Group and their respective authorized accountants, counsel and other designated representatives to obtain access to Information relating to the Flowco Business that is in the custody of any third party records management repository to which Infrastructurco has transferred information, including but not limited to Iron Mountain.

 

(c)           Infrastructurco and Flowco each acknowledge and agree that each Party possesses certain Information reflecting the operations of the other Party for periods prior to the Effective Time in such archived electronic format as described in Schedule 7.2(c) (the “Archived Data”).  Subject to the provisions of Section 7.7 below, each Party agrees to maintain the Archived Data in a manner materially consistent with the treatment of such Archived Data as of the Effective Date; provided, however, that neither Party is required to maintain any specific storage format, license, system, reporting functionality for such Archived Data or specific personnel to provide access to the Archived Data.  Access to the Archived Data will remain under the sole discretion and control of the custodian Party and, except as specifically set forth on Schedule 7.2(c), no personnel of either Party will be granted direct access to the other Party’s network or systems and any requests for delivery of Archived Data shall be governed by the provisions of Section 7.2(a).

 

Section 7.3.        Witness Services.  At all times from and after the Effective Time, each of Infrastructurco and Flowco shall use its commercially reasonable efforts to make available to the other, upon reasonable written request, its and its Group’s officers, directors, employees and agents (taking into account the business demands of such individuals) as witnesses to the extent that (i) such Persons may reasonably be required to testify in connection with the prosecution or defense of any Action in which the requesting Party may from time to time be involved (except for claims, demands or Actions in which one or more members of one Group is adverse to one or more members of the other Group) and (ii) there is no conflict in the Action between the requesting Party and the other Party.

 

Section 7.4.        Confidentiality.

 

(a)           Notwithstanding any termination of this Agreement, from and after the Effective Time until the date that is ten (10) years after the Distribution Date, the Parties shall hold, and shall each cause their respective officers, employees, agents, consultants and advisors

 

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to hold, in strict confidence, and not to disclose or release or use, for any ongoing or future commercial purpose, without the prior written consent of the other Party, any and all Confidential Information concerning the other Party (and the members of its respective Group and Business); provided, that the Parties may disclose, or may permit disclosure of, Confidential Information (i) to their respective auditors, attorneys, financial advisors, bankers and other appropriate consultants and advisors who have a need to know such information for auditing and other appropriate purposes and are informed of their obligation to hold such information confidential to the same extent as is applicable to the Parties and in respect of whose failure to comply with such obligations, the applicable Party will be responsible, (ii) if the Parties or any of the members of their respective Groups are required or compelled to disclose any such Confidential Information by judicial or administrative process or by other requirements of Law or stock exchange rule, or (iii) as necessary in order to permit a Party to prepare and disclose its financial statements, or other required disclosures; provided, further, that each Party (and members of its Group as necessary) may use, or may permit use of, Confidential Information of the other Party in connection with such first Party performing its obligations, or exercising its rights, under this Agreement or any Ancillary Agreement.  Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made pursuant to clause (ii) above, each Party, as applicable, shall promptly notify the other of the existence of such request or demand and shall provide the other a reasonable opportunity to seek an appropriate protective order or other remedy, which such Parties will cooperate in obtaining.  In the event that such appropriate protective order or other remedy is not obtained, the Party whose Confidential Information is required to be disclosed shall or shall cause the other applicable Party or Parties to furnish, or cause to be furnished, only that portion of the Confidential Information that is legally required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is accorded such information.

 

(b)           Notwithstanding anything to the contrary set forth herein, (i) the Parties shall be deemed to have satisfied their obligations hereunder with respect to Confidential Information if they exercise at least the same degree of care that applies to SPX’s confidential and proprietary information pursuant to policies in effect as of the Effective Time and (ii) confidentiality obligations provided for in any Contract between each Party or the members of its Group and their respective employees shall remain in full force and effect.  Notwithstanding anything to the contrary set forth herein, Confidential Information of any Party in the possession of and used by any other Party as of the Effective Time may continue to be used by such Party in possession of the Confidential Information in and only in the operation of the Flowco Business (in the case of the Flowco Group) or the Infrastructurco Business (in the case of the Infrastructurco Group).

 

(c)           Each Party acknowledges that it and the other members of its Group may have in their possession confidential or proprietary information of Third Parties that was received under confidentiality or non-disclosure agreements with such Third Party prior to the Effective Time.  Such Party will hold in strict confidence the confidential and proprietary information of Third Parties to which they or any other member of their respective Groups has access, in accordance with the terms of any Contracts entered into prior to the Effective Time between one or more members of the such Party’s Group (whether acting through, on behalf of, or in connection with, the separated Businesses) and such Third Parties.

 

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Section 7.5.        Privileged Matters.

 

(a)           Pre-Separation Services.  The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the Infrastructurco Group and the Flowco Group, and that each of the members of the Infrastructurco Group and the Flowco Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.  No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party.

 

(b)           Post-Separation Services.  The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of Infrastructurco or Flowco or their successors or assigns, as the case may be.  With respect to such post-separation services, the Parties agree as follows:

 

(i)            Infrastructurco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the Infrastructurco Business, whether or not the privileged information is in the possession of or under the control of Infrastructurco or Flowco or any member of its Group or their respective successors or assigns.  Infrastructurco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting Infrastructurco Liabilities, now pending or which may be asserted in the future, in any Action, lawsuits or other proceedings initiated against or by Infrastructurco or any member of its Group, whether or not the privileged information is in the possession of or under the control of Infrastructurco or Flowco or any member of its Group or their respective successors or assigns; and

 

(ii)           Flowco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the Flowco Business, whether or not the privileged information is in the possession of or under the control of Infrastructurco or Flowco or their successors or assigns.  Flowco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting Flowco Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Flowco or any member of its Group, whether or not the privileged information is in the possession of or under the control of Infrastructurco or Flowco or any member of its Group or their respective successors or assigns.

 

(iii)          The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 7.5, with respect to all privileges not allocated pursuant to the terms of Section 7.5(b)(i) and 7.5(b)(ii).  All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both Infrastructurco and Flowco in respect of

 

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which both Parties retain any responsibility or Liability under this Agreement, shall be subject to a shared privilege among them.

 

(c)           No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party.  If a dispute arises between or among the Parties or their respective Group members regarding whether a privilege should be waived to protect or advance the interest of any Party, each Party agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.

 

(d)           Upon receipt by any Party or by any member of its Group thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which another Party has the sole right hereunder to assert a privilege, or if any Party obtains knowledge that any of its or any of its Group members’ current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party or Parties of the existence of the request and shall provide the other Party or Parties a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 7.5 or otherwise to prevent the production or disclosure of such privileged information.

 

(e)           The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of Infrastructurco and Flowco as set forth in Section 7.4 and this Section 7.5 to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges.  The access to Information being granted pursuant to Section 7.1 and Section 7.2, the agreement to provide witnesses and individuals pursuant to Section 7.3, the furnishing of notices and documents and other cooperative efforts contemplated by this Section 7.5, and the transfer of privileged information between and among the Parties and the members of their respective Groups pursuant to this Agreement shall not be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.

 

Section 7.6.        Ownership of Information.  Any Information owned by one Party or any of the members of its Group that is provided to a requesting Party pursuant to this Article VII or Section 5.2 shall be deemed to remain the property of the providing Party.  Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such Information.

 

Section 7.7.        Retention of Records.  Except as otherwise required by Law or agreed in writing, or as otherwise provided in any Ancillary Agreement, each Party shall use commercially reasonable efforts to comply with its records retention policy, as amended or revised from time to time, in the retention and destruction of all Information in the possession of such Party or any other member of its Group substantially relating to the other Party, any other member of its Group or its Business, its Assets or Liabilities, this Agreement or the Ancillary Agreements.

 

Section 7.8.        Other Agreements.  The rights and obligations granted under this Article VII are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information, or privileged matter with respect thereto, set forth in any Ancillary Agreement.

 

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Section 7.9.        Compensation for Providing Information.  A Party requesting Information pursuant to this Article VII agrees to reimburse the providing Party for the reasonable, out-of-pocket expenses, if any, of copying and otherwise complying with the respect with respect to such Information (including any reasonable costs and expenses incurred in any review of Information for purposes of protecting any privilege thereunder or any other restrictions on the disclosure of such Information).

 

ARTICLE VIII

 

DISPUTE RESOLUTION

 

Section 8.1.        Negotiation.

 

(a)           In the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity, termination or breach of, this Agreement or any Ancillary Agreement (unless such Ancillary Agreement expressly provides that disputes thereunder will not be subject to the resolution procedures set forth in this Article VIII) or otherwise related to the transactions contemplated hereby or thereby (but excluding any controversy, dispute or claim arising out of any Contract with a Third Party if such Third Party is a necessary party to such controversy, dispute or claim) (collectively, “Agreement Disputes”), the general counsel or chief legal officer (as appropriate) of the relevant Parties (or such other person designated by the relevant Party) shall negotiate for a minimum of sixty (60) days to attempt to settle such Agreement Dispute (“Negotiation Period”).  The Negotiation Period shall commence on the date of receipt by a Party of written notice of such Agreement Dispute (“Dispute Notice”).  Within thirty (30) days of receipt of the Dispute Notice, the receiving Party shall submit to the other Party a written response.

 

(b)           Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement, in the event of any Agreement Dispute with respect to which a Dispute Notice has been delivered in accordance with this Section 8.1 (i) the relevant Parties shall not assert the defenses of statute of limitations and laches with respect to the period beginning after the date of receipt of the Dispute Notice, and (ii) any contractual time period or deadline under this Agreement or any Ancillary Agreement to which such Agreement Dispute relates occurring after the Dispute Notice is received shall be tolled by the service of a Dispute Notice.  Such tolling-period shall terminate at the conclusion of the arbitration proceeding or one hundred eighty (180) days after the date of issuance of the Dispute Notice if no arbitration proceeding has commenced by that date.

 

(c)           Nothing said or disclosed, nor any document produced, in the course of any negotiations, conferences and discussions in connection with efforts to settle an Agreement Dispute that is not otherwise independently discoverable shall be offered or received as evidence or used for impeachment or for any other purpose in any arbitration or other proceeding, but shall be considered as to have been disclosed for settlement purposes.

 

Section 8.2.        Statute of Limitations.  No arbitration proceeding may be commenced or prosecuted if the claim asserted therein would be barred by the statute of limitations applicable if the claim were being asserted in a state court for the State of Delaware for all state law claims and in a federal court in the State of Delaware for all federal law claims.

 

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Section 8.3.        Arbitration.  If the Agreement Dispute has not been resolved for any reason after sixty (60) days have elapsed from the receipt by a Party of a Dispute Notice, such Agreement Dispute shall be exclusively and finally determined, at the request of any relevant Party, by arbitration conducted where the Parties agree it would be most convenient, and in the absence of agreement in Charlotte, North Carolina, before and in accordance with the American Arbitration Association (“AAA”) Commercial Arbitration Rules then currently in effect, except as modified herein (the “Rules”).

 

(a)           Selection of Arbitrators.

 

(i)            The Agreement Dispute shall be heard and determined by either one (1) or three (3) arbitrators, as may be agreed upon by the Parties.  If the Parties are unable to agree upon the number of arbitrators and a claim or counterclaim involves at least $1,000,000, then three arbitrators shall hear and determine the case.  If the Parties are unable to agree upon the number of arbitrators and each claim and counterclaim is less than $1,000,000, then one arbitrator shall hear and determine the case.

 

(ii)           For Agreement Disputes heard and determined by one (1) arbitrator, the arbitrator shall be agreed to by the Parties within twenty (20) days of receipt by the respondent of a copy of the demand for arbitration or in default thereof appointed by the AAA in accordance with the Rules.

 

(iii)          For Agreement Disputes heard and determined by three (3) arbitrators, each Party shall appoint an arbitrator within twenty (20) days of receipt by respondent of a copy of the demand for arbitration.  The two (2) Party-appointed arbitrators shall have twenty (20) days from the appointment of the second arbitrator to agree on a third arbitrator who shall chair the arbitral tribunal.  Any arbitrator not timely appointed by the Parties shall be appointed by the AAA in accordance with the Rules.

 

(iv)          All arbitrators shall be neutral and disinterested, and there shall be no ex parte contact with any arbitrator during the pendency of the arbitration proceeding.

 

(b)           Disputes Concerning Arbitration.  Any controversy concerning the jurisdiction of the arbitrators, whether an Agreement Dispute is arbitrable, whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the interpretation of enforceability of this Article VIII shall be determined by the arbitrators.

 

(c)           Arbitration Procedures.

 

(i)            Any hearing to be conducted shall be held no later than one hundred eighty (180) days following appointment of the arbitrators or as soon thereafter as practicable as determined in the sole discretion of the arbitrators.

 

(ii)           The arbitrators, consistent with the expedited nature of arbitration, shall permit limited discovery only of documents directly related to the issues in

 

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dispute.  There shall be no more than three (3) depositions per Party and no deposition shall be more than eight (8) hours.

 

(iii)          In resolving any Agreement Dispute, the Parties intend that the arbitrators shall apply the substantive Laws of the State of Delaware, without regard to any choice of law principles thereof that would mandate the application of the Laws of another jurisdiction.

 

(d)           Pre-Hearing Procedure and Disposition.  Nothing contained herein is intended to or shall be construed to prevent any Party from applying to any court of competent jurisdiction for interim measures or other provisional relief in connection with the subject matter of any Agreement Disputes, including to compel a Party to arbitrate any Agreement Dispute, to prevent irreparable harm prior to the appointment of the arbitral tribunal or to require witnesses to obey subpoenas issued by the arbitrators.  Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the Parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any Party to respect the arbitral tribunal’s orders to that effect.  The Parties agree to accept and honor any orders relating to interim or provisional remedies that are issued by the arbitrators and agree that any such interim order or remedy may be enforced, as necessary, in any court of competent jurisdiction.

 

(e)           Awards.  The arbitrators shall make an award and issue a reasoned opinion in writing setting forth the basis for such award within sixty (60) days following the close of the hearing on the merits.  The arbitrators shall be entitled, if appropriate, to award any remedy in such proceedings that is permitted under this Agreement and applicable Law, including monetary damages, specific performance and other forms of legal and equitable relief.  The Parties hereby waive any claim to exemplary, punitive, multiple or similar damages in excess of compensatory damages, attorneys’ fees, costs and expenses of arbitration, except as may be expressly required by statute or as necessary to indemnify a Party for a Third Party Claim and the arbitrators are not empowered to and shall not award such damages.  Any final award must provide that the Party against whom an award is issued shall comply with the order within a specified period of time, not to exceed thirty (30) days.

 

(f)            Finality of Awards.  The Parties intend that the provisions to arbitrate set forth herein be valid, enforceable and irrevocable, and any award rendered by the arbitrators shall be final and binding on the Parties.  The Parties agree to comply and cause the members of their applicable Group to comply with any award made in any such arbitration proceedings and agree to enforcement of or entry of judgment upon such award in any court of competent jurisdiction.

 

(g)           Costs and Fees.  Except as otherwise provided in any Ancillary Agreement, the arbitrator shall award the prevailing party, if any, as determined by the arbitrator all of its costs and fees of arbitration.  If any Party attempts, unsuccessfully, to prevent an Agreement Dispute from being arbitrated such Party shall reimburse the prevailing party for all costs and fees incurred in compelling arbitration.  As used in this Section, costs and fees of arbitration shall mean reasonable attorneys’ fees and expenses, litigation support expenses, the arbitrators’ fees, AAA administrative fees and expert fees.

 

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(h)           Adherence to Time Limits.  In accepting appointment, each of the arbitrators shall commit that his or her schedule permits him or her to devote the reasonably necessary time and attention to the arbitration proceedings and to resolving the Agreement Dispute within the time periods set by this Agreement and by the Rules.  Any time limits set out in this Article VIII or in the Rules may be modified upon written agreement of the Parties and the arbitrators or by order of the arbitrators for good cause shown.  Any failure of the arbitrators to comply with such time limits or to render a final award within the time specified shall not impair the validity of the award or cause the award to be void or voidable, nor shall it be a basis for challenge of the validity or enforceability of the award or of the arbitration proceedings.

 

(i)            Confidentiality of Proceedings.  Without limiting the provisions of the Rules, unless otherwise agreed in writing by or among the relevant Parties or permitted by this Agreement or as may be required by law or any regulatory authority, the relevant Parties shall keep, and shall cause the members of their applicable Group to keep, confidential all matters relating to the arbitration or the award.  The arbitral award shall be confidential; provided that such award may be disclosed (i) to the extent reasonably necessary in any proceeding brought to enforce this agreement to arbitrate or any arbitral award or for entry of a judgment upon the award and (ii) to the extent otherwise required by Law or regulatory authority.

 

Section 8.4.        Continuity of Service and Performance.  During the course of dispute resolution pursuant to the provisions of this Article VIII, the Parties will continue to provide all other services and honor all other commitments under this Agreement and each Ancillary Agreement with respect to all matters not subject to such dispute resolution.

 

ARTICLE IX

 

INSURANCE

 

Section 9.1.        Assignment of Rights.  Effective as of the Effective Time, and subject to Section 2.7, SPX, on its behalf and on behalf of its Affiliates, hereby assigns, transfers, conveys and delivers to Flowco, and Flowco hereby accepts, all rights to, proceeds from, and all claims of SPX and its Affiliates (or any of them) for coverage, defense, indemnification, payment, reimbursement, recoupment, or any other benefits provided under any Third Party SPX Policies in connection with Flowco Liabilities.  This assignment includes, but is not limited to, any and all chose in action rights arising from or related to Flowco Liabilities.  In accordance with the assignment of insurance rights and claims in this Section 9.1, Flowco shall have the right to make claims for coverage for Flowco Liabilities under the Third Party SPX Policies, including providing notice and tender of claims to insurers.  The Parties shall reasonably cooperate as necessary to effectuate further the assignment of rights and claims in this Section 9.1 and in Flowco’s pursuit of insurance coverage under the Third Party SPX Policies for Flowco Liabilities, including by making available to Flowco copies of the Policies, and cooperating in actions that are necessary or helpful to perfect or secure the right of Flowco to obtain coverage for Flowco Liabilities under the Third Party SPX Policies.  Flowco may take whatever action it deems reasonable to effectuate the assignment of insurance rights and claims in this Section 9.1 and to secure coverage under the Third Party SPX Policies for Flowco Liabilities, at its sole cost and expense.  Such actions may include filing any legal proceeding for declaratory judgment or damages, in its own name or the name of one or more of the Parties, against an insurer issuing or

 

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subscribing to one or more of the Third Party SPX Policies, and/or bringing an action or asserting a claim against any such insurer for compensatory or punitive damages for breach of contract, breach of the covenant of good faith and fair dealing, violation of applicable insurance laws, or violation of other legal obligations arising out of the acts or omissions of such insurers in connection with Flowco Liabilities.

 

Section 9.2.        Third Party SPX Policies.

 

(a)           SPX shall use commercially reasonable efforts to obtain, or to cause to be obtained, any material Consent, release, substitution or amendment required to novate, assign by endorsement, or amend (with assumption, as applicable) to add Flowco as a named insured party to, each of the Novated Third Party SPX Liability Policies, so that (i) such Third Party SPX Policies will continue to provide Flowco and any other member of the Flowco Group with access to and coverage under the applicable Third Party SPX Policies, and (ii) Flowco and any other member of the Flowco Group may submit, administer, manage, litigate and settle claims under the applicable Novated Third Party SPX Liability Policies.  To the extent that any novations, endorsements or amendments contemplated by this Section 9.2(a) shall not have been consummated at or prior to the Effective Time, the Parties shall cooperate to effect such novations, endorsements or amendments as promptly following the Effective Time as shall be practicable.

 

(b)           With respect to any Third Party SPX Policy (other than Novated Third Party SPX Liability Policies that are novated as contemplated by Section 9.2(a) at or prior to the Effective Time) that may cover a loss or casualty with respect to the Flowco Business, Infrastructurco will, and will cause the applicable insurance companies or members of the Infrastructurco Group that are insured thereunder (i) to continue to provide Flowco and any other member of the Flowco Group with access to and coverage under the applicable Third Party SPX Policies, and (ii) to the extent requested by (and, in accordance with the reasonable instructions of) Flowco, submit, administer, manage, litigate and settle claims on behalf of Flowco or any other member of the Flowco Group under the applicable Third Party SPX Policies; provided, that Flowco shall be responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge or fee legally due and owing to Third Parties relating to such claims.  Flowco shall reimburse Infrastructurco for its reasonable, documented costs and expenses incurred by Infrastructurco in connection with its submission, administration, management, litigation and settlement of claims on behalf of Flowco or any other member of the Flowco Group in accordance with the foregoing to the extent such costs and expenses are not covered under Third Party SPX Policies.  Flowco shall reimburse Infrastructurco within sixty (60) days following the receipt of an applicable monthly invoice from Infrastructurco, for any payments of claims made by or on behalf of Flowco, including any and all applicable deductibles, self-insured retentions, retrospective premiums, and reasonable third party costs ,co-payments or any other charge or fee legally due and owing to Third Parties relating to such Flowco claims. Reasonable documented costs and expenses incurred by Infrastructurco, litigation and settlement of claims on behalf of Flowco or any other member of the Flowco Group in accordance with the foregoing to the extent such costs and expenses are not covered under Third Party SPX Policies will be reimbursed to Infrastructurco by Flowco. None of Infrastructurco or any member of the Infrastructurco Group shall settle any Insured Claim of Flowco or any member of Flowco Group under the Third Party SPX Policies without first obtaining the approval of Flowco or such member of Flowco Group.

 

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(c)           Infrastructurco shall not, without the consent of Flowco, provide any insurance company with a release or amend, modify or waive any rights under any Third Party SPX Policy if such release, amendment, modification or waiver thereunder would materially adversely affect any rights of any member of the Flowco Group with respect to insurance coverage otherwise afforded to the Flowco Group; provided, however, that the foregoing shall not (i) preclude any member of Infrastructurco Group from presenting any claim or from exhausting any policy limit, (ii) require any member of the Infrastructurco Group to pay any premium, or (iii) require any member of the Infrastructurco Group to renew or extend or continue any Third Party SPX Policy in force beyond its current term.

 

Section 9.3.        Director and Officer Liability Insurance.  For the six (6)-year period commencing at the Effective Time, Infrastructurco shall maintain in effect United States directors’ and officers’ liability insurance coverage with reputable insurance carriers in an amount not less than $100,000,000 for the first three (3) years and $80,000,000 for the next three (3) years, respectively, on terms and conditions no less advantageous to the directors and officers than the coverage currently provided under SPX’s current policies.  Such insurance coverage shall cover the directors and officers of SPX and its Subsidiaries prior to the Effective Time with respect to acts or omissions that occurred prior to the Effective Time.  If Infrastructurco or any of its successors or assigns (i) consolidates or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Infrastructurco shall assume all of the obligations set forth in this Section 9.3.

 

Section 9.4.        Cooperation.  The Parties agree to use their commercially reasonable efforts to cooperate with respect to the various insurance matters contemplated by this Article IX.

 

Section 9.5.        Miscellaneous.  Nothing in this Agreement shall be deemed to restrict Flowco or Infrastructurco, or any members of their respective Groups, from acquiring at its own expense any Policy in respect of any Liabilities or covering any period.  Except as otherwise provided in this Agreement or any Ancillary Agreement, from and after the Effective Time, Flowco and Infrastructurco shall be responsible for obtaining and maintaining their respective insurance programs for their risk of loss and such insurance arrangements shall be separate programs apart from each other and each will be responsible for its own premiums, retentions, deductibles, or other charges or fees for such insurance programs.

 

ARTICLE X

 

MISCELLANEOUS

 

Section 10.1.     Complete Agreement; Construction.  This Agreement and the Ancillary Agreements (and the exhibits and schedules thereto) shall constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter.  Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, in the event of any conflict between the terms and conditions of the body of this Agreement or any Ancillary Agreement and the terms and conditions of any Schedule, the terms and conditions of

 

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such Schedule shall control (it being understood that the Parties intend to include in the Schedules any exceptions to the general rules described in the body of this Agreement and to give full effect to such exceptions, with respect to the matters expressly set forth therein).  Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, in the case of any conflict between the provisions of this Agreement and the provisions of any Ancillary Agreement, the provisions of this Agreement shall control; provided, however, that in relation to (i) any matters concerning Taxes, the Tax Matters Agreement shall prevail over this Agreement and any other Ancillary Agreement; (ii) any matters governed by the Employee Matters Agreement, the Employee Matters Agreement shall prevail over this Agreement or any other Ancillary Agreement, and (iii) the provision of support and other services after the Effective Time by the Flowco Group to the Infrastructurco Group, and vice versa, the Transition Services Agreement shall prevail over this Agreement or any other Ancillary Agreement.  It is the intention of the Parties that the Transfer Documents shall be consistent with the terms of this Agreement and the other Ancillary Agreements.  The Parties agree that the Transfer Documents are not intended and shall not be considered in any way to enhance, modify or decrease any of the rights or obligations of Infrastructurco, Flowco or any member of their respective Groups from those contained in this Agreement and the other Ancillary Agreements.

 

Section 10.2.     Ancillary Agreements.  Notwithstanding anything to the contrary contained in this Agreement, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements (excluding the Transfer Documents and the Reorganization Documents).

 

Section 10.3.     Counterparts.  This Agreement may be executed in more than one counterparts, all of which shall be considered one and the same agreement, and, except as otherwise expressly provided in Section 1.3, shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to the other Parties.  Execution of this Agreement or any other documents pursuant to this Agreement by facsimile or other electronic copy of a signature shall be deemed to be, and shall have the same effect as, executed by an original signature.

 

Section 10.4.     Survival of Agreements.  Except as otherwise contemplated by this Agreement or any Ancillary Agreement, all covenants and agreements of the Parties contained in this Agreement and each Ancillary Agreement shall survive the Effective Time and remain in full force and effect in accordance with their applicable terms.

 

Section 10.5.     Expenses.

 

(a)           Except as otherwise expressly provided in this Agreement (including paragraphs (b) and (c) of this Section 10.5 and Schedule 10.5(a)) or any Ancillary Agreement, or as otherwise agreed to in writing by the Parties, all out-of-pocket fees and expenses incurred on or prior to the Effective Time in connection with the preparation, execution, delivery and implementation of this Agreement and any Ancillary Agreement, the Separation, the Information Statement, the plan of Separation and the Distribution and the consummation of the transactions contemplated hereby and thereby shall be borne and paid by the Person incurring such cost or Liability.

 

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(b)           Except as otherwise expressly provided in this Agreement (including paragraphs (b) and (c) of this Section 10.5) or any Ancillary Agreement, or as otherwise agreed to in writing by the Parties, each Party shall bear its own costs and expenses incurred or accrued after the Effective Time; provided, however, that any costs and expenses incurred in obtaining any Consents or novation from a Third Party in connection with the assignment to or assumption by a Party or a member of its Group of any Contracts in connection with the Separation shall be borne by the Party or the member of its Group to which such Contract is being assigned.

 

(c)           With respect to any expenses incurred pursuant to a request for further assurances granted under Section 2.10, the Parties agree that any and all fees and expenses incurred by either Party shall be borne and paid by the requesting Party; it being understood that no Party shall be obliged to incur any Third-Party accounting, consulting, advisor, banking or legal fees, costs or expenses, and the requesting Party shall not be obligated to pay such fees, costs or expenses, unless such fee, cost or expense shall have had the prior written approval of the requesting Party.  Notwithstanding the foregoing, each Party shall be responsible for paying its own internal fees, costs and expenses (e.g., salaries of personnel).  With respect to any fees, costs and expenses incurred by either Party in satisfying its obligations under Section 5.2, the requesting Party shall be responsible for the other Party’s fees, costs and expenses.

 

Section 10.6.     Notices.  All notices, requests, claims, demands and other communications under this Agreement and, to the extent applicable and unless otherwise provided therein, under each of the Ancillary Agreements, as between the Parties, shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt unless the day of receipt is not a Business Day, in which case it shall be deemed to have been duly given or made on the next Business Day) by delivery in person, by overnight courier service, by facsimile with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.6):

 

If to Infrastructurco:

 

SPX Corporation

13320-A Ballantyne Corporate Place

Charlotte, NC  28277

Attention:  General Counsel

Telecopy number: _________

 

If to Flowco:

 

SPX FLOW, Inc.

13320 Ballantyne Corporate Place

Charlotte, NC  28277

Attention:  General Counsel

Telecopy number:  704.752.7448

 

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Section 10.7.     Waivers.  The failure of any Party to require strict performance by any other Party of any provision in this Agreement will not waive or diminish that Party’s right to demand strict performance thereafter of that or any other provision hereof.

 

Section 10.8.     Amendments.  Subject to the terms of Section 10.10, this Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

 

Section 10.9.     Assignment.  The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors (by merger, acquisition of assets or otherwise) and permitted transferees and assigns to the same extent as if such successor or permitted transferees and assigns had been an original party to the Agreement.  Notwithstanding the foregoing, this Agreement shall not be assignable, in whole or in part, by any Party without the prior written consent of the other Party, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided, that (i) a Party may assign any or all of its rights and obligations under this Agreement to any of its Affiliates, but no such assignment shall release the assigning Party from any liability or obligation under this Agreement, (ii) a Party may assign this Agreement in whole in connection with a bone fide third party merger transaction in which such Party is not the surviving entity or the sale by such Party of all or substantially all of its Assets, and upon the effectiveness of such assignment under this clause (ii) the assigning Party shall be released from all of its obligations under this Agreement if the surviving entity of such merger or the transferee of such Assets shall agree in writing, in form and substance reasonably satisfactory to the other Party, to be bound by the terms of this Agreement as if named as a “Party” hereto, and (iii) a Party may pledge or collaterally assign its rights under this Agreement to any financing source for it or any member of its Group, but no such pledge or collateral assignment shall release the pledging or assigning Party from any liability or obligation under this Agreement.

 

Section 10.10.   Termination, Etc.  Notwithstanding anything to the contrary herein, this Agreement (including Article VI (Indemnification)) may be terminated and the Distribution may be amended, modified or abandoned at any time prior to the Effective Time by and in the sole and absolute discretion of SPX without the approval of Flowco or the stockholders of SPX.  In the event of such termination, this Agreement shall become null and void and no Party, nor any of its officers, directors or employees, shall have any Liability to any other Party or any other Person.  After the Effective Time, this Agreement may not be terminated except by an agreement in writing signed by each of the Parties.

 

Section 10.11.   Payment Terms.

 

(a)           Except as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount to be paid or reimbursed by any Party (and/or a member of such Party’s Group), on the one hand, to any other Party (and/or a member of such Party’s Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within five (5) Business Days after presentation of an undisputed invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

 

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(b)           Except as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount not paid when due pursuant to this Agreement shall bear interest at a rate per annum equal to the then effective Prime Rate plus 2% (or the maximum legal rate, whichever is lower), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.

 

Section 10.12.   No Circumvention.  The Parties agree not to directly or indirectly take any actions, act in concert with any Person who takes an action, or cause or allow any member of any such Party’s Group to take any actions (including the failure to take a reasonable action) such that the resulting effect is to materially undermine the effectiveness of any of the provisions of this Agreement or any Ancillary Agreement (including adversely affecting the rights or ability of any Party to successfully pursue indemnification, contribution or payment pursuant to Article VI).

 

Section 10.13.   Subsidiaries.  Each of the Parties shall cause (or with respect to an Affiliate that is not a Subsidiary, shall use commercially reasonable efforts to cause) to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary or Affiliate of such Party or by any Business Entity that becomes a Subsidiary or Affiliate of such Party on and after the Effective Time.  This Agreement is being entered into by Infrastructurco and Flowco on behalf of themselves and the members of their respective Groups (the Infrastructurco Group and the Flowco Group).  This Agreement shall constitute a direct obligation of each such entity and shall be deemed to have been readopted and affirmed on behalf of any Business Entity that becomes a Subsidiary or Affiliate of such Party on and after the Effective Time.  Either Party shall have the right, by giving notice to the other Party, to require that any Subsidiary of the other Party execute a counterpart to this Agreement to become bound by the provisions of this Agreement applicable to such Subsidiary.

 

Section 10.14.   Third Party Beneficiaries.  Except as explicitly provided in Article VI relating to Indemnitees and except as specifically provided in any Ancillary Agreement, this Agreement is solely for the benefit of the Parties and should not be deemed to confer upon third parties any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to this Agreement.

 

Section 10.15.   Exhibits and Schedules; Title and Headings.  The Exhibits and Schedules attached hereto are incorporated herein by reference and shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. Titles and headings to Sections and Articles are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

 

Section 10.16.   Public Announcements.  From and after the Effective Time, Infrastructurco and Flowco shall consult with each other before issuing, and give each other the opportunity to review and comment upon, that portion of any press release or other public statements that relates to the transactions contemplated by this Agreement or the Ancillary Agreements, and shall not issue any such press release or make any such public statement prior to such consultation, except (a) as may be required by applicable Law, court process or by

 

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obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system; or (b) for disclosures made that are substantially consistent with disclosure contained in any Distribution Disclosure Document or Pre-Separation Disclosure.

 

Section 10.17.   Governing Law.  This Agreement shall be governed by and construed in accordance with the internal Laws, and not the Laws governing conflicts of Laws, of the State of Delaware.

 

Section 10.18.   Consent to Jurisdiction.  Subject to the provisions of Article VIII, each of the Parties irrevocably submits to exclusive jurisdiction of (i) the Court of Chancery of the State of Delaware (unless the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, in which case, any state or federal court within the State of Delaware) and (ii) so long as both Parties are headquartered in North Carolina, any state or federal court within the State of North Carolina, for the purposes of any suit, action or other proceeding to compel arbitration, for provisional relief in aid of arbitration in accordance with Article VIII, for provisional relief to prevent irreparable harm, or for the enforcement of any award issued thereunder.  Each of the Parties further agrees that service of any process, summons, notice or document by United States registered mail to such Party’s respective address set forth in Section 10.6 shall be effective service of process for any action, suit or proceeding in the Delaware or North Carolina courts with respect to any matters to which it has submitted to jurisdiction in this Section 10.18.  Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the Delaware courts or, so long as both Parties are headquartered in North Carolina, the North Carolina courts, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any Delaware court or, so long as both Parties are headquartered in North Carolina, any North Carolina court has been brought in an inconvenient forum.

 

Section 10.19.   Specific Performance.  The Parties agree that irreparable damage would occur in the event that the provisions of this Agreement were not performed in accordance with their specific terms.  Accordingly, it is hereby agreed that the Parties shall be entitled to (i) an injunction or injunctions to enforce specifically the terms and provisions hereof in any arbitration in accordance with Article VIII, (ii) provisional or temporary injunctive relief in accordance therewith in any Delaware Court, and (iii) enforcement of any such award of an arbitral tribunal or a Delaware Court in any court of the United States, or any other any court or tribunal sitting in any state of the United States or in any foreign country that has jurisdiction, this being in addition to any other remedy or relief to which they may be entitled.

 

Section 10.20.   Waiver of Jury Trial.  SUBJECT TO ARTICLE VIII AND SECTIONS 10.18 AND 10.19, EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY COURT PROCEEDING PERMITTED HEREUNDER.  EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS

 

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AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.20.

 

Section 10.21.   Severability.  In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and the Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

 

Section 10.22.   Construction.  The Parties have participated jointly in the negotiation and drafting of this Agreement.  This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.

 

Section 10.23.   Authorization.  Each of the Parties hereby represents and warrants that it has the power and authority to execute, deliver and perform this Agreement, that this Agreement has been duly authorized by all necessary corporate action on the part of such Party, that this Agreement constitutes a legal, valid and binding obligation of each such Party enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and general equity principles.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the Parties have caused this Separation and Distribution Agreement to be duly executed as of the date first above written.

 

 

	SPX CORPORATION
	By:	/s/ Stephen A. Tsoris
	Name: Stephen A. Tsoris
	Title: Vice President, Secretary and General Counsel
	SPX FLOW, INC.
	By:	/s/ Stephen A. Tsoris
	Name: Stephen A. Tsoris
	Title: Vice President and Secretary

 

[Signature Page to Separation and Distribution Agreement]

 

Exhibit 3.1

 

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

SPX FLOW, INC.

 

SPX FLOW, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:

 

(a)                   The Corporation filed its original Certification of Incorporation with the Secretary of State of the State of Delaware on February 11, 2015.

 

(b)                   This Amended and Restated Certificate of Incorporation, which restates and integrates and also further amends the provisions of the original Certificate of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, and reads in its entirety as follows:

 

FIRST. The name of the corporation is SPX FLOW, Inc..

 

SECOND. The address of its registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

 

THIRD. The nature of the business, or objects or purposes to be conducted or promoted by the Corporation are:

 

(a)           To manufacture, purchase or otherwise acquire invest in, or mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and with goods, wares and merchandise and property of every class and description, including but not limited to the manufacture and sale of automotive engine parts and related products.

 

(b)           To have one or more offices, to carry on all or any of its operations and business and without restriction or limit as to amount to purchase or otherwise acquire, hold, own, mortgage, sell, convey or otherwise dispose of, real and personal property of every class and description in any of the states, districts, territories or possessions of the United States, and in any and all foreign countries, subject to the laws of such state, district, territory, possession or country.

 

(c)           To purchase, hold, sell and transfer the shares of its own capital stock; provided it shall not use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of its capital except as otherwise permitted by law, and provided further that shares of its own capital stock belonging to it shall not be voted upon directly or indirectly.

 

(d)           To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

 

 

FOURTH.

 

1.   Authorized Shares. The total number of authorized shares of stock of all classes which the Corporation shall have authority to issue is three hundred three million (303,000,000), of which three million (3,000,000) shall be shares of Preferred Stock, without par value, and three hundred million (300,000,000) shall be shares of Common Stock, par value $0.01 per share.

 

2.   Preferred Stock.

 

(a)           The Preferred Stock shall be issuable in series, and in connection with the issuance of any series of Preferred Stock and to the extent now or hereafter permitted by the laws of the State of Delaware, the Board of Directors is authorized to fix by resolution the designation of each series, the stated value of the shares of each series, the dividend rate of each series and the date or dates and other provisions respecting the payment of dividends, the provisions, if any, for a sinking fund for the shares of each series, the preferences of the shares of each series in the event of the liquidation or dissolution of the Corporation, the provisions, if any, respecting the redemption of the shares of each series and, subject to requirements of the laws of the State of Delaware, the voting rights, the terms, if any, upon which the shares of each series shall be convertible into or exchangeable for any other shares of stock of the Corporation and any other relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, of the shares of each series.

 

(b)           Preferred Stock of any series redeemed, converted, exchanged, purchased, or otherwise acquired by the Corporation shall constitute authorized but unissued Preferred Stock.

 

(c)           All shares of any series of Preferred Stock, as between themselves, shall rank equally and be identical; and all series of Preferred Stock, as between themselves, shall rank equally and be identical except as set forth in resolutions of the Board of Directors authorizing the issuance of such series.

 

3.   Common Stock.

 

(a)           After dividends to which the holders of Preferred Stock may then be entitled under the resolutions creating any series thereof have been declared and after the Corporation shall have set apart the amounts required pursuant to such resolutions for the purchase or redemption of any series of Preferred Stock, the holders of Common Stock shall be entitled to have dividends declared in cash, property, or other securities of the Corporation out of any net profits or net assets of the Corporation legally available therefor.

 

(b)           In the event of the liquidation or dissolution of the Corporation’s business and after the holders of Preferred Stock shall have received amounts to which they are entitled under the resolutions creating such series, the holders of Common Stock shall be

 

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entitled to receive ratably the balance of the Corporation’s net assets available for distribution.

 

(c)           Each share of Common Stock shall be entitled to one vote, but shall not be entitled to vote for the election of any directors who may be elected by vote of the Preferred Stock voting as a class.

 

4.   Preemptive Rights. No holder of any shares of the Corporation shall have any preemptive right to subscribe for or to acquire any additional shares of the Corporation of the same or of any other class, whether now or hereafter authorized or any options or warrants giving the right to purchase any such shares, or any bonds, notes, debentures or other obligations convertible into any such shares.

 

FIFTH.  The Corporation is to have perpetual existence.

 

SIXTH.  The private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatever.

 

SEVENTH.  Except as otherwise fixed by resolution of the Board of Directors pursuant to the provisions of Article FOURTH hereof relating to the rights of the holders of Preferred Stock to elect directors as a class, the number of the directors of the Corporation shall be fixed from time to time by resolution of the Board of Directors. The directors, other than those who may be elected by the holders of Preferred Stock, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, designated Class I, Class II and Class III. The directors in Class I shall serve for an initial term expiring at the Corporation’s 2016 annual meeting of stockholders, the directors in Class II shall serve for an intial term expiring at the Corporation’s 2017 annual meeting of stockholders, and the directors in Class III shall serve for an intial term expiring at the Corporation’s 2018 annual meeting of stockholders, with each director in a class to hold office until his successor is elected and qualified. At the 2016 annual meeting of the stockholders of the Corporation and at each subsequent annual meeting of the stockholders of the Corporation, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. Advance notice of stockholder nominations for the election of directors shall be given in the manner provided in the By-Laws of the Corporation.

 

Except as otherwise fixed by resolution of the Board of Directors pursuant to the provisions of Article FOURTH hereof relating to the rights of the holders of Preferred Stock to elect directors as a class, newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall be a member of the class of directors in which the new directorship was created (subject to the requirements of this Article SEVENTH that all classes be as nearly equal in number as possible) or in which the vacancy occurred and shall be submitted to a stockholder vote at the next annual meeting of stockholders.

 

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No decrease in the number of directors constituting the Board of Directors shall shorten the term of an incumbent director.

 

Subject to the rights of the holders of Preferred Stock to elect directors as a class, a director may be removed only for cause and only by the affirmative vote of the holders of 80% of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class.

 

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized:

 

1.   To adopt, amend and repeal the By-Laws of the Corporation. Any by-laws adopted by the directors under the powers conferred hereby may be amended or repealed by the directors or by the stockholders. Notwithstanding any provision in this Amended and Restated Certificate of Incorporation or the By-Laws of the Corporation to the contrary, Article II, Sections 3 and 7 and Article III, Sections 1, 2 and 3 of the By-Laws of the Corporation shall not be amended or repealed by the stockholders and no provision inconsistent therewith shall be adopted by the stockholders, in each case without the affirmative vote of the holders of at least 80% of the voting power of all the shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

 

2.   To fix and determine, and to vary the amount of, the working capital of the Corporation, and to determine the use or investment of any assets of the Corporation, to set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve or reserves.

 

3.   To authorize the purchase or other acquisition of shares of stock of the Corporation or any of its bonds, debentures, notes, scrip, warrants or other securities or evidences of indebtedness.

 

4.   Except as otherwise provided by law, to determine the places, within or without the State of Delaware, where any or all of the books of the Corporation shall be kept.

 

5.   To authorize the sale, lease or other disposition of any part or parts of the properties of the Corporation and to cease to conduct the business connected therewith or again to resume the same, as it may deem best.

 

6.   To authorize the borrowing of money, the issuance of bonds, debentures and other obligations or evidences of indebtedness of the Corporation, secured or unsecured, and the inclusion of provisions as to redeemability and convertibility into shares of stock of the Corporation or otherwise; and the mortgaging or pledging, as security for money borrowed or bonds, notes, debentures or other obligations issued by the Corporation, of any property of the Corporation, real or personal, then owned or thereafter acquired by the Corporation.

 

In addition to the powers and authorities herein or by statute expressly conferred upon it, the Board of Directors may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the laws of the

 

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State of Delaware, of this Amended and Restated Certificate of Incorporation and of the By-Laws of the Corporation.

 

Subject to any limitation in the By-Laws of the Corporation, the members of the Board of Directors shall be entitled to reasonable fees, salaries or other compensation for their services, as determined from time to time by the Board of Directors, and to reimbursement for their expenses as such members. Nothing herein contained shall preclude any director from serving the Corporation or its subsidiaries or affiliates in any other capacity and receiving compensation therefor.

 

Notwithstanding anything contained in this Amended and Restated Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend, adopt any provision inconsistent with or repeal this Article SEVENTH.

 

EIGHTH.  Both stockholders and directors shall have power, if the By-Laws of the Corporation so provide, to hold their meetings and to have one or more offices within or without the State of Delaware.

 

Except as otherwise fixed by resolution of the Board of Directors pursuant to the provisions of Article FOURTH hereof relating to the rights of the holders of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. Except as otherwise required by law and subject to the rights of the holders of Preferred Stock, special meetings of stockholders may be called only by the Chairman on his own initiative, the President on his own initiative or by the Board of Directors pursuant to a resolution approved by a majority of the entire Board of Directors. Notwithstanding anything contained in this Amended and Restated Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend, adopt any provision inconsistent with or repeal this Article EIGHTH.

 

NINTH.  Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of the General Corporation Law of the State of Delaware or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of the General Corporation Law of the State of Delaware order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree

 

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to any compromise or arrangement and to any reorganization of the Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.

 

TENTH.  Except as otherwise provided in this Amended and Restated Certificate of Incorporation, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

ELEVENTH.  No contract or other transaction between the Corporation and any person, firm, association or Corporation and no other act of the Corporation shall, in the absence of fraud, be invalidated or in any way affected by the fact that any of the directors of the Corporation are, directly or indirectly, pecuniarily or otherwise interested in such contract, transaction or other act or related to or interested in such person, firm, association or corporation as director, stockholder, officer, employee, member or otherwise. Any director of the Corporation individually, or any firm or association of which any director may be a member, may be a party to, or may be pecuniarily or otherwise interested in, any contract or transaction of the Corporation, provided that the fact that he individually or such firm or association is so interested shall be disclosed or known to the Board of Directors or a majority of such members thereof as shall be present at any meeting of the Board of Directors, or of any committee of directors having the powers of the full Board, at which action upon any such contract, transaction or other act is taken, and if such fact shall be so disclosed or known any director of the Corporation so related or otherwise interested may be counted in determining the presence of a quorum at any meeting of the Board of Directors or of such committee at which action upon any such contract, transaction or act shall be taken and may vote thereat with respect to such action with like force and effect as if he were not so related or interested. Any director of the Corporation may vote upon any contract or other transaction between the Corporation and any subsidiary or affiliated corporation without regard to the fact that he is also a director of such subsidiary or affiliated corporation.

 

TWELFTH.

 

(a)           A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware, or any other applicable law, is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, or any other

 

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applicable law, as so amended. Any repeal, or modification of this Section (a) by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

 

(b)

 

(1)  Each person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer or employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware, or any other applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in paragraph (2) of this Section (b) with respect to proceedings seeking to enforce rights to indemnification, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this Section (b) shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that if the General Corporation Law of the State of Delaware, or any other applicable law, requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section (b) or otherwise.

 

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(2)  If a claim under paragraph (1) of this Section (b) is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware, or any other applicable law, for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, stockholders or independent legal counsel) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, or any other applicable law, nor an actual determination by the Corporation (including its Board of Directors, stockholders or independent legal counsel) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

 

(3)  The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section (b) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of this Amended and Restated Certificate of Incorporation, By-Law, agreement, vote of stockholders or disinterested directors or otherwise.

 

(4)  The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware, or any other applicable law.

 

(5)  The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any employee or agent of the Corporation to the fullest extent of the provisions of this Section (b) with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.

 

(6)  Any repeal or modification of this Section (b) by the stockholders of the Corporation shall not adversely affect any right or protection of a director,

 

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officer, employee or agent of the Corporation existing at the time of such repeal or modification.

 

THIRTEENTH.  Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to the General Corporation Law of the State of Delaware or the Corporation’s certificate of incorporation or by-laws (as either may be amended from time to time), or (d) any action asserting a claim governed by the internal affairs doctrine of the State of Delaware shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware).  Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article THIRTEENTH.

 

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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation, which restates and integrates and further amends the provisions of the Certificate of Incorporation of the Corporation, and which has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, has been executed by its duly authorized officer as of September 22, 2015.

 

	SPX FLOW, INC.
	By:	/s/ Stephen A. Tsoris
	Name: Stephen A. Tsoris
	Title: Vice President, Secretary and General Counsel

 

10

Exhibit 3.2

 

BY-LAWS

 

OF

 

SPX FLOW, INC.

 

(A Delaware Corporation)

 

Amended and Restated

 

Effective as of September 22, 2015

 

 

BY-LAWS

 

OF

 

SPX FLOW, INC.

(A Delaware Corporation)

 

ARTICLE I

 

Offices

 

Section 1.  The registered office of the corporation shall be in Wilmington, New Castle County, Delaware.

 

Section 2.  The corporation shall have its principal office at 13320 Ballantyne Corporate Place, Charlotte, North Carolina, and it may also have offices at such other places as the board of directors may from time to time determine.

 

ARTICLE II

 

Stockholders

 

Section 1.  Annual Meeting.  The annual meeting of stockholders for the election of directors and for the transaction of such other business as may be properly brought before the meeting shall be held on such date as the board of directors shall fix each year.  No business shall be conducted at an annual meeting except in accordance with the procedures set forth in these by-laws.  The presiding officer of an annual meeting shall, if the facts warrant, determine that business was not properly brought before the meeting in accordance with the provisions of these by-laws, and, if it is so determined, shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

 

To be properly brought before an annual meeting, (a) business must be specified in the notice of meeting, or any supplement thereto, given by or at the direction of the board of directors, (b) business must be otherwise properly brought before the meeting by or at the direction of the board of directors, (c) director nominations by a stockholder must be submitted pursuant to Section 1 of Article III, or (d) business other than director nominations must be otherwise properly brought before the meeting by a stockholder who (i) is a stockholder of record at the time of giving notice provided for in this Section and at the time of the annual meeting of stockholders, (ii) is entitled to vote at the meeting, and (iii) complies with the notice procedures as to such business set forth in this Section.  Clauses (c) and (d) of this paragraph shall be the exclusive means for a stockholder to submit business before an annual meeting of stockholders other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the corporation’s notice of meeting.

 

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For business to be properly brought before an annual meeting by a stockholder pursuant to Clause (d) of the preceding paragraph, such business must be a proper subject for stockholder action under the General Corporation Law of the State of Delaware and the secretary of the corporation must have received notice of such business in writing from the stockholder not later than the close of business on the one hundred and twentieth day, nor earlier than the one hundred and fiftieth day, prior to the anniversary date of the immediately preceding annual meeting; provided, however, that, subject to the last sentence of this paragraph, if an annual meeting is convened more than sixty days prior to, or delayed by more than forty-five days after, the anniversary date of the immediately preceding annual meeting, if no annual meeting was held in the preceding year, notice to be timely must be received by the secretary of the corporation from the stockholder not later than the close of business on the later of (i) the one hundred and twentieth day before such annual meeting, or (ii) if the first public announcement of the date of such annual meeting is less than one hundred days prior to the date of such annual meeting, the tenth day following the day on which public announcement of the date of such meeting is first made; and with respect to the 2016 annual meeting of stockholders, notice to be timely must be received by the secretary of the corporation from the stockholder not earlier than December 10, 2015 nor later than January 9, 2016.  A stockholder’s notice to the secretary of the corporation shall set forth as to each matter the stockholder proposes to bring before the annual meeting (a) a brief description of the business desired to be brought before the meeting, and (b) the reasons for conducting such business at the meeting.  In no event shall an adjournment, or postponement of an annual meeting for which the public announcement of the date thereof shall have been made, commence a new time period for the giving of notice by a stockholder.

 

Nothing in this Section shall be deemed to affect any rights of (a) stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) the holders of any series of preferred stock if and to the extent provided for under law, the certificate of incorporation or these by-laws.

 

Section 2.  Special Meetings.  Special meetings of the stockholders may be called only by the chairman, the president or the board of directors pursuant to a resolution approved by a majority of the entire board.  Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting of stockholders pursuant to the corporation’s notice of meeting.

 

Section 3.  Stockholder Action; How Taken.  Any action required or permitted to be taken by the stockholders of the corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders.

 

Section 4.  Place of Meeting.  The board of directors may designate any place, either within or without Delaware, as the place of meeting for any annual or special meeting.

 

Section 5.  Notice of Meetings.  Written or printed notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of the meeting, or in the case of a merger or consolidation, not less than twenty nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the

 

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chairman, or the president, or the secretary, or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting.  If mailed, such notice shall be deemed to be delivered when deposited in the United States mails in a sealed envelope addressed to the stockholder at his address as it appears on the records of the corporation with postage thereon prepaid.

 

Section 6.  Record Date.  For the purpose of determining (a) stockholders entitled to notice of or to vote at any meeting of stockholders, (b) stockholders entitled to receive payment of any dividend, or (c) stockholders for any other purpose, the board of directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than sixty days and not less than ten days, or in the case of a merger or consolidation not less than twenty days prior to the date on which the particular action, requiring such determination of stockholders is to be taken.

 

Section 7.  Quorum.  The holders of not less than one-third of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute, by the certificate of incorporation or by these by-laws.  If, however, such quorum shall not be present or represented at any meeting of the stockholders, the chairman of the meeting shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented.  At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

 

When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy and entitled to vote on the subject matter shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation or of these by-laws, a different vote is required in which case such express provision shall govern and control the decision of such question.

 

Section 8.  Notices; Required Stockholder Information.  A stockholder’s notice of director nominations to be brought before an annual or special meeting as permitted by Section 1 of Article III and a stockholder’s notice of other business to be brought before an annual meeting as permitted by Clause (d) of Section 1 of this Article, shall, in addition to the information required by such Sections, set forth the following as to the stockholder giving the notice and the beneficial owner or owners, if any, on whose behalf the nomination or business proposal is made and their respective affiliates and associates:

 

(a)           the name and address of such stockholder, as they appear on the corporation’s stockholder records, and of the beneficial owner or owners, if any, and of each of their respective affiliates and associates in respect of which information is required to be provided pursuant to Clauses (b) or (c) below;

 

4

 

(b)           the class and number of shares of capital stock or other securities of the corporation or any of its subsidiaries that are owned, whether of record or beneficially, by such stockholder, such beneficial owner or owners, if any, and each of their respective affiliates and associates, as of the date of such notice (which information shall be supplemented by such stockholder, such beneficial owner or owners, if any, and their respective affiliates and associates, not later than ten days after the record date for the meeting to disclose such ownership as of the record date);

 

(c)           a representation that such stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and the beneficial owner or owners, if any, is the beneficial owner of stock of the corporation; and such stockholder (or its duly authorized representative) intends to appear in person or by proxy at the meeting to nominate the person or persons or present the business proposal, as specified in the notice;

 

(d)           a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of such notice by, or on behalf of, the stockholder, the beneficial owner or owners, if any, or any of their respective affiliates or associates, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of the stockholder or the beneficial owner, if any, or any of their respective affiliates or associates, with respect to shares of stock or other securities of the corporation or any of its subsidiaries, and a representation that the stockholder or the beneficial owner or owners, if any, will notify the corporation in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first publicly disclosed;

 

(e)           any material interest of the stockholder or the beneficial owner or owners, if any, or any of their respective affiliates or associates in such director nomination or business proposal;

 

(f)            a description of all agreements, arrangements and understandings between such stockholder or the beneficial owner or owners, if any, or any of their respective affiliates or associates and any other person or persons (including their names) in connection with such director nomination or business proposal, including a description of all agreements, arrangements or understandings between such stockholder or the beneficial owner or owners, if any, or any of their respective affiliates or associates and each nominee and any other person or persons, naming such person or persons, pursuant to which the director nomination or nominations are to be made by the stockholder; and

 

(g)           any other information relating to such stockholder, beneficial owner or owners, if any, or any of their respective affiliates and associates that would be required by Section 14 of the Exchange Act and the rules and regulations promulgated thereunder to be included in a proxy statement or other filings of such stockholder, beneficial owner

 

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or owners, if any, or any of their respective affiliates and associates required to be made in connection with solicitations of proxies for the proposal or the election of directors in a contested election, as applicable, if Section 14 of the Exchange Act were applicable.

 

Section 9.  Procedure.  The order of business and all other matters of procedure at every meeting of stockholders shall be determined by the chairman of the meeting.  The board of directors shall appoint two or more inspectors of election to serve at every meeting of stockholders at which directors are to be elected.  The chairman of the meeting may adjourn or postpone a meeting of stockholders with or without the approval of the stockholders present and voting.  In no event shall the adjournment of an annual or special meeting commence a new time period for the giving of a stockholder’s notice as described in Section 1 of this Article or Section 1 of Article III.

 

ARTICLE III

 

Directors

 

Section 1.  Number, Election and Terms.  Except as otherwise fixed pursuant to the provisions of Article Fourth of the certificate of incorporation relating to the rights of the holders of any class or series of stock having a preference over the common stock as to dividends or upon liquidation to elect additional directors under specified circumstances, the number of directors shall be fixed from time to time by the board of directors but shall not be less than three.  The directors, other than those who may be elected by the holders of any class or series of stock having a preference over the common stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as near equal in number as possible, designated Class I, Class II and Class III.  The directors in Class I shall serve for an initial term expiring at the 2016 annual meeting of stockholders, the directors in Class II shall serve for an initial term expiring at the 2017 annual meeting of stockholders, and the directors in Class III shall serve for an initial term expiring at the 2018 annual meeting of stockholders, with each director in a class to hold office until his or her successor is elected and qualified.  At the 2016 annual meeting of the stockholders and at each subsequent annual meeting of the stockholders, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election.

 

The term the “entire board” as used in these by-laws means the total number of directors which the corporation would have if there were no vacancies.

 

Except as provided in Section 2 of this Article, each director shall be elected by the vote of the majority of the votes cast with respect to the director at any meeting for the election of directors at which a quorum is present, provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for which (i) the secretary of the corporation receives a notice that a stockholder has nominated a person for election to the board of directors in compliance with the advance notice requirements for stockholder nominees for director set forth in this Section and (ii) such nomination has not been withdrawn by such stockholder as of a date that is ten days in advance of the date the corporation files its definitive

 

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proxy statement with the Securities and Exchange Commission (regardless of whether or not thereafter revised or supplemented).  For purposes of this Section, a majority of the votes cast means that the number of shares voted “for” a director must exceed the number of shares voted “against” that director.  The Nominating & Governance Committee shall maintain procedures regarding the tender to the board of directors by directors of advance resignations to address majority voting.  The Nominating & Governance Committee shall make a recommendation to the board of directors on whether to accept or reject a resignation, or whether other action should be taken.  The board of directors shall act on the Committee’s recommendation and publicly disclose its decision and the rationale behind it in a Form 8-K filed with the Securities and Exchange Commission within ninety days from the date of the certification of the election results.

 

Subject to the rights of holders of any class or series of stock having a preference over the common stock as to dividends or upon liquidation, nominations for the election of directors may be made by the board of directors or a committee appointed by the board of directors or by any stockholder who (i) is a stockholder of record at the time of giving notice provided for in this Section and at the time of the meeting of stockholders at which the election of directors occurs, (ii) is entitled to vote at the meeting on the election of directors, and (iii) complies with the notice procedures as to such nominations as set forth in this Section.  For a stockholder to nominate candidates for the election of directors at an annual meeting of stockholders, the secretary of the corporation shall have received notice of such nomination in writing from the stockholder not later than the close of business on the one hundred and twentieth day, nor earlier than the one hundred and fiftieth day, prior to the anniversary date of the immediately preceding annual meeting; provided, however, that, subject to the last sentence of this paragraph, if an annual meeting is convened more than sixty days prior to, or delayed by more than forty five days after, the anniversary date of the immediately preceding annual meeting, or if no annual meeting was held in the preceding year, notice to be timely must be received by the secretary of the corporation from the stockholder not later than the close of business on the later of (i) the one hundred and twentieth day before such annual meeting or (ii) if the first public announcement of the date of such annual meeting is less than one hundred days prior to the date of such annual meeting, the tenth day following the day on which public announcement of the date of such meeting is first made; and with respect to the 2016 annual meeting of stockholders, notice to be timely must be received by the secretary of the corporation from the stockholder not earlier than December 10, 2015 nor later than January 9, 2016.  For a stockholder to nominate candidates for the election of directors at a special meeting of stockholders at which directors are to be elected, the secretary of the corporation shall have received notice of such nomination in writing from the stockholder not later than the close of business on the tenth day following the date on which public announcement of the date of such special meeting (and that directors will be elected at such special meeting) is first made.  A stockholder’s notice to the secretary of the corporation shall set forth: (a) the name and address of the person or persons to be nominated; (b) such other information regarding each nominee proposed by such stockholder that would be required by Section 14 of the Exchange Act and the rules and regulations promulgated thereunder to be included in a proxy statement or other filings of such stockholder, beneficial owner or owners, if any, or any of their respective affiliates and associates required to be made in connection with solicitations of proxies for the election of directors in a contested election, as applicable, if Section 14 of the Exchange Act were applicable; (c) the consent of each nominee to serve as a

 

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director of the corporation if so elected; and (d) a statement as to whether each nominee, if elected, intends to tender, promptly following such nominee’s election or re-election, an irrevocable resignation effective upon such nominee’s failure to receive the required vote for re-election at the next meeting at which such nominee would face re-election and the acceptance of such resignation by the board of directors, in accordance with the corporation’s Corporate Governance Guidelines.  In no event shall an adjournment, or postponement of an annual or special meeting for which the public announcement of the date thereof shall have been made, commence a new time period for the giving of notice by a stockholder.

 

The chairman of the meeting may refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedure.

 

Section 2.  Newly Created Directorships and Vacancies. Except as otherwise fixed pursuant to the provisions of Article Fourth of the certificate of incorporation relating to the rights of the holders of any class or series of stock having a preference over the common stock as to dividends or upon liquidation to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of directors and any vacancies on the board of directors resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the board of directors.  Any director elected in accordance with the preceding sentence shall be a member of the class of directors in which the new directorship was created (subject to the requirements of Section 1 of this Article III that all classes be as nearly equal in number as possible) or in which the vacancy occurred and shall be submitted to a stockholder vote at the next annual meeting of stockholders.  No decrease in the number of directors constituting the board of directors shall shorten the term of any incumbent director.

 

Section 3.  Removal.  Subject to the rights of any class or series of stock having a preference over the common stock as to dividends or upon liquidation to elect directors under specified circumstances, any director may be removed from office, for cause, only by the affirmative vote of the holders of 80% of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class.

 

Section 4.  Regular Meetings.  Regular meetings of the board of directors shall be held at such times and at such places as the board of directors may from time to time determine.

 

Section 5.  Special Meetings.  Special meetings of the board of directors may be called by or at the request of the chairman or the president or by any officer of the corporation upon the request of a majority of the entire board.  The person or persons authorized to call special meetings of the board of directors may fix any place, either within or without Delaware, as the place for holding any special meeting of the board of directors called by them.

 

Section 6.  Notice.  Notice of regular meetings of the board of directors need not be given.  Notice of every special meeting of the board of directors shall be given to each director at his usual place of business, or at such other address as shall have been furnished by him for the

 

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purpose.  Such notice shall be given at least twenty-four hours before the meeting by telephone or by being personally delivered, mailed or telegraphed.  Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.

 

Section 7.  Quorum.  A majority of the entire board shall constitute a quorum for the transaction of business at any meeting of the board of directors, provided, that if less than a majority of the entire board is present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further notice.  The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors unless the act of a greater number is required by the certificate of incorporation or these by-laws.

 

Section 8.  Compensation.  Directors who are also full time employees of the corporation shall not receive any compensation for their services as directors but they may be reimbursed for reasonable expenses of attendance.  By resolution of the board of directors, all other directors may receive either an annual fee or a fee for each meeting attended, or both, and expenses of attendance, if any, at each regular or special meeting of the board of directors; provided, that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor.

 

Section 9.  Committees.  The board of directors may, by resolution passed by a majority of the entire board, designate one or more committees, each committee to consist of two or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it.  Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors.  Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

 

Section 10.  Director Emeritus.  The board of directors may by resolution appoint any former director who has retired from the board of directors as a Director Emeritus.  Directors Emeritus may, but are not required to, attend all meetings (regular and special) of the board of directors and will receive notice of such meetings; however, they shall not have the right to vote and they shall be excluded from the number of directors for quorum and other purposes.  Directors Emeritus shall be appointed for one year terms and may be reappointed for up to two additional one year terms.

 

Section 11.  Independence.  No nominee shall be eligible for election to the board of directors unless such nominee has provided such information as the corporation has reasonably requested to determine the eligibility of such nominee to serve as an independent director of the corporation.

 

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ARTICLE IV

 

Officers

 

Section 1.  Number.  The officers of the corporation shall be a chairman, a vice-chairman (if elected by the board of directors), a president, an executive vice president (if elected by the board of directors), one or more vice-presidents (the number thereof to be determined by the board of directors), a treasurer, a secretary and such other officers as may be elected in accordance with the provisions of this Article.

 

Section 2.  Election and Term of Office.  The officers of the corporation shall be elected annually by the board of directors at the first meeting of the board of directors held after each annual meeting of stockholders.  If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as convenient.  Vacancies may be filled or new offices created and filled at any meeting of the board of directors.  Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided.

 

Section 3.  Removal.  Any officer or agent elected or appointed by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

 

Section 4.  Vacancies.  A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term.

 

Section 5.  Chairman.  The chairman shall preside at all meetings of the stockholders and the board of directors.  If so appointed by the board of directors he shall be the chief executive officer of the corporation and shall have those duties and responsibilities described in Section 8 of this Article.  He shall perform such other duties as may be prescribed by the board of directors.

 

Section 6.  Vice-Chairman.  The vice-chairman (if elected by the board of directors) shall, in the absence of the chairman, preside at all meetings of the stockholders and the board of directors.  If so appointed by the board of directors, he shall be either the chief executive officer or the chief operating officer, or both, and he shall have those duties and responsibilities described in Sections 8 or 9 of this Article, as the case may be.  He shall perform such other duties as may be prescribed by the board of directors and by the chief executive officer if he does not have that position.

 

Section 7.  President.  The president shall be either the chief executive officer or the chief operating officer, or both, as determined by the board of directors, and shall have the duties and responsibilities described in Sections 8 and 9 of this Article, as the case may be.  In the absence of the chairman and vice-chairman, he shall preside at all meetings of the stockholders and board of directors.  He shall perform such other duties as may be prescribed by the board of directors and chief executive officer if he does not have that position.

 

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Section 8.  Chief Executive Officer.  The chief executive officer of the corporation shall be either the chairman, the vice-chairman or the president as determined by the board of directors.  The chief executive officer shall provide overall direction and administration of the business of the corporation, he shall interpret and apply the policies of the board of directors, establish basic policies within which the various corporate activities are carried out, guide and develop long range planning and evaluate activities in terms of objectives.  He may sign, with the secretary or any other proper officer of the corporation thereunto authorized by the board of directors, stock certificates of the corporation, any deeds, mortgages, bonds, contracts, or other instruments except in cases where the signing and execution thereof shall be required by law to be otherwise signed or executed, and he may execute proxies on behalf of the corporation with respect to the voting of any shares of stock owned by the corporation.  He shall have the power to (1) designate management committees of employees deemed essential in the operations of the corporation, its divisions or subsidiaries, and appoint members thereof, subject to the approval of the board of directors; (2) appoint certain employees of the corporation as vice presidents of one or several divisions or operations of the corporation, subject to the approval of the board of directors, provided however, that any vice president so appointed shall not be an officer of the corporation for any other purpose; and (3) appoint such other agents and employees as in his judgment may be necessary or proper for the transaction of the business of the corporation and in general shall perform all duties incident to the office of the chief executive.

 

Section 9.  Chief Operating Officer.  The chief operating officer (if elected by the board of directors) shall be either the vice-chairman or the president as determined by the board of directors.  The chief operating officer shall in general be in charge of all operations of the corporation and shall direct and administer the activities of the corporation in accordance with the policies, goals and objectives established by the chief executive officer and the board of directors.  In the absence of the chief executive officer, the chief operating officer shall assume the duties and responsibilities of the office of the chief executive.

 

Section 10.  Executive Vice President.  The executive vice president (if elected by the board of directors) shall report to either the chief executive officer or the chief operating officer as determined in the corporate organization plan established by the board of directors.  He shall direct and coordinate such major activities as shall be delegated to him by his superior officer in accordance with policies established and instructions issued by his superior officer, the chief executive officer, or the board of directors.

 

Section 11.  Vice Presidents.  The board of directors may elect one or several vice presidents.  Each vice president shall report to either the chief executive officer, the chief operating officer or the executive vice president as determined in the corporate organization plan established by the board of directors.  Each vice president shall perform such duties as may be delegated to him by his superior officers and in accordance with the policies established and instructions issued by his superior officer, the chief executive officer or the board of directors.  The board of directors may designate any vice president as a senior vice president and a senior vice president shall be senior to all other vice presidents and junior to the executive vice president.  In the event there be more than one senior vice president, then seniority shall be determined by and be the same as the annual order in which their names are presented to and acted on by the board of directors.

 

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Section 12.  The Treasurer.  The treasurer shall (a) have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other; (b) in general perform all the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him by the chief executive officer, chief operating officer or by the board of directors.

 

Section 13.  The Secretary.  The secretary shall:  (a) keep the minutes of the meetings of the stockholders and the board of directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these by-laws or as required by law; (d) keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder; (e) sign with the chairman, president, or a vice president, stock certificates of the corporation, the issue of which shall have been authorized by resolution of the board of directors; (f) have general charge of the stock transfer books of the corporation; (g) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the chief executive officer, chief operating officer or by the board of directors.

 

ARTICLE V

 

Fiscal Year

 

The fiscal year of the corporation shall begin on the first day of January in each year and end on the thirty-first day of December in each year.

 

ARTICLE VI

 

Seal

 

The corporate seal shall be in the form determined by the board of directors.

 

ARTICLE VII

 

Waiver of Notice

 

Whenever any notice is required to be given under the provisions of these by-laws or under the provisions of the certificate of incorporation or under the provisions of the laws of the State of Delaware, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.

 

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ARTICLE VIII

 

Amendments

 

Subject to the provisions of the certificate of incorporation, these by-laws may be altered, amended or repealed at any regular meeting of the stockholders, or at any special meeting of stockholders duly called for that purpose, by a majority vote of the shares represented and entitled to vote at such meeting; provided that in the notice of such special meeting notice of such purpose shall be given.  Subject to the laws of the State of Delaware, the certificate of incorporation and these by-laws, the board of directors may by a majority vote of those present at any meeting at which a quorum is present amend these by-laws, or enact such other by-laws as in their judgment may be advisable for the regulation of the conduct of the affairs of the corporation.

 

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EXHIBIT 4.1

 

THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of September 22, 2015, is entered into by and between SPX FLOW, Inc., a corporation organized under the laws of the State of Delaware (the “Company”), as successor entity under the Indenture referred to below (in such capacity, the “Successor Entity”) and U.S. Bank National Association (or its permitted successor) as trustee (the “Trustee”) under the Indenture referred to below.

 

W I T N E S S E T H

 

WHEREAS, SPX Corporation, a corporation organized under the laws of the State of Delaware (“SPX”), the Subsidiary Guarantors party thereto and the Trustee have heretofore executed and delivered an indenture, dated as of August 16, 2010 (as amended and supplemented by the First Supplemental Indenture, dated as of January 23, 2014, and the Second Supplemental Indenture, dated as of November 7, 2014, the “Indenture”);

 

WHEREAS, the 6.875% Senior Notes due 2017 (the “Notes”) have been issued pursuant to the Indenture and are outstanding as of the date of this Supplemental Indenture;

 

WHEREAS, the Notes are the only series of securities outstanding under the Indenture;

 

WHEREAS, SPX’s obligations under the Notes are guaranteed by the Subsidiary Guarantors;

 

WHEREAS, Section 5.01 of the Indenture provides that SPX may not, among other things, sell, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions), to any Person unless, among other things, the Person that acquires such property and assets expressly assumes, by a supplemental indenture, SPX’s obligations under the Indenture and the Notes;

 

WHEREAS, Section 5.01 of the Indenture further provides that the transfer of the Flowco Assets as a result of the Flowco Asset Transfer shall be deemed to be the transfer of substantially all of SPX’s property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to the Company so long as the Flowco Assets accounted for a majority of the consolidated revenues of SPX for the most recent four fiscal quarter period ending prior to the Spin-off;

 

WHEREAS, SPX has transferred the Flowco Assets to the Company pursuant to that certain Separation and Distribution Agreement, dated as of September 22, 2015, by and between SPX and the Company (the “Separation Agreement”) and the Flowco Assets account for a majority of the consolidated revenues of SPX for the most recent four fiscal quarter period ending prior to the Spin-off;

 

WHEREAS, Section 4.1(c) of the Separation Agreement permits Flowco to issue and deliver, at SPX’s direction and on SPX’s behalf, the Flowco Global Note directly to the Trustee, as custodian for the Depositary, in satisfaction of Flowco’s obligation to issue the Flowco Global Note to SPX and SPX’s obligation to deliver the Flowco Global Note to the Trustee, as custodian for the Depositary;

 

WHEREAS, Section 9.01 of the Indenture provides that, without consent of any Holders, the Indenture may be amended to provide for the assumption of SPX’s obligations to the Holders of the Notes in the case of a transfer of substantially all of the SPX’s property and assets;

 

WHEREAS, the Company desires and has requested the Trustee to join in entering into this Supplemental Indenture for the purpose of evidencing the assumption by the Company of SPX’s obligations to the Holders of the Notes under the Indenture;

 

WHEREAS, (i) SPX has delivered to the Trustee an Officers’ Certificate and stating that the Flowco Asset Transfer complies with Section 5.01 of the Indenture and that all conditions precedent provided for in the Indenture relating to such transaction have been complied with, and (ii) the Company has delivered to the Trustee

 

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an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided in the Indenture relating to the execution and delivery of this Supplemental Indenture have been complied with;

 

WHEREAS, the Company has been authorized by Board Resolutions to enter into this Supplemental Indenture;

 

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture; and

 

WHEREAS, all conditions necessary to authorize the execution and delivery of this Supplemental Indenture by the Company to make this Supplemental Indenture valid and binding on the Company have been complied with or have been done or performed.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

 

1.             CAPITALIZED TERMS.  Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

2.             ASSUMPTION OF OBLIGATIONS. The Company hereby expressly assumes all of the obligations of SPX under the Indenture and the Notes.

 

3.             EFFECT AND OPERATION OF SUPPLEMENTAL INDENTURE.  This Supplemental Indenture shall be effective and binding immediately upon its execution by the Company and the Trustee, and thereupon this Supplemental Indenture shall form a part of the Indenture for all purposes, and every Note and Note Guarantee heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby.

 

4.             INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER.  This Supplemental Indenture is an indenture supplemental to, and in implementation of, the Indenture, and the Indenture and this Supplemental Indenture shall henceforth be read and construed together.

 

5.             TRUST INDENTURE ACT CONTROLS.  If any provision of the Indenture, as amended by this Supplemental Indenture, limits, qualifies or conflicts with another provision which is required or deemed to be included in the Indenture, as amended by this Supplemental Indenture, by the Trust Indenture Act, such required or deemed provision of the Trust Indenture Act shall control.

 

6.             NO RECOURSE AGAINST OTHERS.  No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company contained in the Indenture or in any of the Notes, as amended by this Supplemental Indenture, or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator or against any past, present or future partner, stockholder, other equityholder, officer, director, employee or controlling person, as such, of the Company or of any successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute, rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is expressly waived and released as a condition of, and as a consideration for, the execution of the Indenture and the issue of the Notes, in each case as amended by this Supplemental Indenture.

 

7.             NEW YORK LAW TO GOVERN.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

8.             SEPARABILITY.  In case any provision in this Supplemental Indenture, the Indenture as supplemented by this Supplemental Indenture, or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

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9.             DUPLICATE ORIGINALS.  The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

10.          EFFECT OF HEADINGS.  The Section headings herein have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.

 

11.          THE TRUSTEE.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

 

 

	SPX FLOW, INC.
	By:	/s/ Stephen A. Tsoris
		Name:	Stephen A. Tsoris
		Title:	Vice President and Secretary

 

[Signature Page to Third Supplemental Indenture]

 

 

	U.S. BANK NATIONAL ASSOCIATION,
	as Trustee
	By:	/s/ Paul Vaden
		Name:	Paul Vaden
		Title:	Vice President

 

[Signature Page to Third Supplemental Indenture]

 

EXHIBIT 4.2

 

THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of September 24, 2015 (the “Supplemental Indenture”), is by and among SPX FLOW, Inc., a Delaware corporation, as the successor entity under the Indenture referenced below (the “Company”), SPX Flow Holdings, Inc., a Delaware corporation, SPX Flow Technology Systems, Inc., a Delaware corporation, SPX Flow US, LLC, a Delaware limited liability company, Corporate Place LLC, a Delaware limited liability company, and Delaney Holdings Co., a Delaware corporation (collectively, the “New Guarantors”), and U.S. Bank National Association, as trustee (the “Trustee”).

 

WHEREAS, the Company and the Trustee are parties as of the date hereof to that certain Indenture dated as of August 16, 2010 (as supplemented by the First Supplemental Indenture, dated January 23, 2014, the Second Supplemental Indenture, dated November 7, 2014, the Third Supplemental Indenture, dated September 22, 2015 and as further supplemented from time to time, the “Indenture”), providing for the issuance of 6.875% Senior Notes due 2017 (the “Notes”);

 

WHEREAS, the Company originally issued $600,000,000 aggregate principal amount of the Notes;

 

WHEREAS, Section 4.13 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”);

 

WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Supplemental Indenture for the purpose of amending the Indenture in certain respects required by Section 4.13 of the Indenture; and

 

WHEREAS, (1) the Company has satisfied all conditions precedent, if any, provided under the Indenture to enable the Company and the Trustee to enter into this Supplemental Indenture, all as certified by an Officers’ Certificate, delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture as contemplated by Sections 11.03 and 11.04 of the Indenture, and (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture an Opinion of Counsel relating to this Supplemental Indenture as contemplated by Sections 11.03 and 11.04 of the Indenture.

 

NOW, THEREFORE, in consideration of the above premises, each party hereby agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows:

 

ARTICLE I

 

GUARANTEE OF NOTES

 

Section 1.1.                                 Agreement to Guarantee. Each New Guarantor hereby agrees to provide an unconditional Guarantee on the terms set forth in the Indenture including but not limited to Article 10 thereof.

 

ARTICLE II

 

MISCELLANEOUS PROVISIONS

 

Section 2.1.                                 Defined Terms. For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.

 

Section 2.2.                                 Indenture. Except as amended hereby, the Indenture is in all respects ratified and confirmed and all the terms thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered

 

 

under the Indenture shall be bound by the Indenture as amended hereby. In the case of conflict between the Indenture and this Supplemental Indenture, the provisions of this Supplemental Indenture shall control.

 

Section 2.3.                                 Governing Law. This Supplemental Indenture will be governed by, and construed in accordance with, the laws of the state of New York.

 

Section 2.4.                                 Successors. All agreements of the Company, the New Guarantors and the Trustee in this Supplemental Indenture, the Notes, and the Guarantee shall bind their respective successors.

 

Section 2.5.                                 Duplicate Originals. All parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement.

 

Section 2.6.                                 Severability. In case any one or more of the provisions in this Supplemental Indenture or in the Notes or Guarantees shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

Section 2.7.                                 Trustee Disclaimer. The Trustee accepts the amendment of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company and the New Guarantors, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.

 

Section 2.8.                                 Effectiveness. The provisions of this Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto.

 

Section 2.9.                                 Effect of Headings. The headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provision hereof.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year written above.

 

	SPX FLOW, INC.
	By:			/s/ Stephen A. Tsoris
	Name:				Stephen A. Tsoris
	Title:				Vice President and Secretary
	SPX FLOW HOLDINGS, INC.
	By:		/s/ Stephen A. Tsoris
	Name:				Stephen A. Tsoris
	Title:				Vice President and Secretary
	SPX FLOW TECHNOLOGY SYSTEMS, INC.
	By:	/s/ Stephen A. Tsoris
	Name:				Stephen A. Tsoris
	Title:				Vice President and Secretary
	SPX FLOW US, LLC
	By:	/s/ Stephen A. Tsoris
	Name:				Stephen A. Tsoris
	Title:				Vice President and Secretary

 

[Signature Page to the Fourth Supplemental Indenture]

 

 

	CORPORATE PLACE LLC
	By:		/s/ Jeremy Smeltser
	Name:			Jeremy Smeltser
	Title:			President
	DELANEY HOLDINGS CO.
	By:	/s/ Jeremy Smeltser
	Name:			Jeremy Smeltser
	Title:			President

 

[Signature Page to the Fourth Supplemental Indenture]

 

 

	U.S. BANK NATIONAL ASSOCIATION, as Trustee
	By:	/s/ Paul Vaden
	Name:		Paul Vaden
	Title:		Vice President

 

[Signature Page to the Fourth Supplemental Indenture]

 

Exhibit 10.1

 

TRANSITION SERVICES AGREEMENT

 

This TRANSITION SERVICES AGREEMENT (this “Agreement”) is made this 26th day of September, 2015, by and between SPX Corporation, a Delaware corporation (“SPX”) and SPX FLOW, Inc., a Delaware corporation (“Flowco”).  Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Separation Agreement (as defined below).

 

W I T N E S S E T H:

 

WHEREAS, SPX and Flowco are parties to that certain Separation and Distribution Agreement dated as of September 22, 2015 (the “Separation Agreement”);

 

WHEREAS, in furtherance of the transactions contemplated in the Separation Agreement, SPX has agreed to provide to Flowco certain services for the periods and on the terms and conditions set forth herein; and

 

WHEREAS, in furtherance of the transactions contemplated in the Separation Agreement, Flowco has agreed to provide to SPX certain services for the periods and on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree:

 

1.             SERVICES

 

1.1          Services.  During the term of this Agreement and subject to the terms and conditions set forth herein,

 

(a)           SPX shall provide to Flowco, or cause an Affiliate or Affiliates of SPX designated by SPX for this purpose to provide to Flowco (with SPX, each, a “SPX Service Provider”), and Flowco agrees to purchase from the SPX Service Providers, the services set forth in Schedule A attached hereto (each, an “SPX Service”, and collectively, the “SPX Services”); and

 

(b)           Flowco shall provide to SPX, or cause an Affiliate or Affiliates of Flowco designated by Flowco for this purpose to provide to SPX (with Flowco, each, a “Flowco Service Provider” and together with the SPX Service Providers, the “Service Provider”), and SPX agrees to purchase from the Flowco Service Providers, the services set forth in Schedule B attached hereto (each, a  “Flowco Service”, collectively, the “Flowco Services” and together with the SPX Services, the “Services”).

 

1.2          Level of Services.  Except as set forth specifically in Schedule A, Schedule B or otherwise specifically agreed to in writing by SPX and Flowco, (a) each party shall provide, or cause its Affiliate to provide, each Service with a degree of care consistent with the care it exercises in the conduct of similar activities for itself, (b) each of the SPX Services that are similar to those provided to, or in connection with the operation of, the Flowco Business prior to the Effective Time shall be, in all material respects, consistent in scope, quality and nature with

 

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those provided to, or provided on behalf of, the Flowco Business prior to the date hereof, (c) each of the Flowco Services that are similar to those provided to, or in connection with the operation of, the Infrastructurco Business prior to the Effective Time shall be, in all material respects, consistent in scope, quality and nature with those provided to, or provided on behalf of, the Infrastructurco Business prior to the date hereof and (d) in no event shall any Service be provided at a level of service (including, without limitation, accuracy, quality, completeness, timeliness, priority and responsiveness) lower than the levels at which such Services were provided prior to the date hereof, if applicable.  The Services to be provided hereunder that are not similar to those provided to the Flowco Business or to the Infrastructurco Business prior to the Effective Time shall be performed by personnel selected by the Service Provider providing such Services, which personnel shall have the capacity, skill and expertise necessary to perform such Services.  In providing the Services, neither the Service Provider nor any of its Affiliates shall be obligated to: (i) hire any additional employees; (ii) maintain the employment of any specific employee; or (iii) purchase, lease or license any additional facilities, equipment or materials; provided that, at all times, the Service Provider shall maintain the standard of care and performance as set forth in the preceding sentences of this Section 1.2.

 

1.3          Cooperation.  Each party shall cause its employees to reasonably cooperate with employees of the Service Provider in providing a Service to such party, to the extent required for effective delivery of the Services and to minimize the disruption to, or additional recordkeeping required by, the Service Provider.  In addition, each party shall name a point of contact who shall be responsible for the day-to-day implementation of this Agreement, including attempted resolution of any issues that may arise during the performance of any of such party’s obligations hereunder.

 

1.4          Third-Party Services.  At its option, each party may cause any Service it is required to provide hereunder to be provided by any third party (a “Third-Party Service”), in which event such Service Provider shall provide prior written notice to the other party of its election to cause such Service to be provided by a third party.  Such Service Provider shall not be responsible for the performance of any Third-Party Services so long as such Service Provider reasonably selects the provider of such Third-Party Services and imposes on such third-party provider the confidentiality obligations specified in this Agreement.  The Service Provider shall assign its rights to enforce any confidentiality claims against such third-party provider to the other party.

 

1.5          Impracticability.  Notwithstanding any other provision of this Agreement, no Service Provider shall be required to provide any Service to the extent the performance of such Service becomes impracticable as a result of a cause or causes outside the control of such Service Provider or to the extent the provision of such Service would require such Service Provider to violate any applicable laws. Each party, as Service Provider, shall promptly notify the other party in writing upon learning of such a cause or causes and shall use commercially reasonable efforts to resume its performance of any Service so suspended with the least possible delay as soon as practicable.

 

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1.6          Performance and Receipt of Services.

 

(a)           SPX and Flowco shall each exercise reasonable care in providing and receiving any Service to (i) prevent access to the Services or the computing, telecommunications or other digital operating or processing systems or environments (including computer programs, data, databases, computers, computer libraries, communications equipment, networks and systems) accessed and/or used in connection with the Services (collectively, the “Information Systems”) by unauthorized Persons and (ii) not damage, disrupt or interrupt the Services or Information Systems.

 

(b)           Neither SPX nor Flowco shall access, nor shall either permit unauthorized Persons to access, the other party’s Information Systems and/or networks without express written authorization of such party, and any such actual or attempted access shall be consistent with any such authorization and the means of access directed by the party granting access to the given Information System.  Each party shall comply with those reasonable policies and procedures relating to access to the other party’s Information Systems as have been provided to it by the other party.

 

1.7          Representatives; Status Meetings.  SPX hereby designates Suzanne Harrington as the SPX representative (the “SPX Representative”) and Flowco hereby designates Nick Persavich as the Flowco representative (the “Flowco Representative”) to coordinate the Services provided under this Agreement.  The SPX Representative and the Flowco Representative shall meet on a monthly basis, or more frequently if reasonably requested by either party, to discuss the Services being provided, the charges and Invoices (as defined below) therefor, any problems with the Services, charges or Invoices, any proposed modifications and any terminations of Services pursuant to Section 6.2(b) below (“Status Meetings”).  Status Meetings shall be held at a time and place mutually agreeable to the Flowco Representative and the SPX Representative and shall be for a reasonable duration; provided that Status Meetings may be held in person or via conference telephone, videophone or similar means.  Each of SPX and Flowco may change its respective representative at any time by written notice to the other party.

 

1.8          Personnel. Each Service Provider shall remain responsible for compensating the employees and the independent contractors it engages to perform the Services on its behalf.  The parties acknowledge and agree that those employees and independent contractors used by the Service Providers in the performance of the Services will have no employer/employee relationship with the recipient of the Services, and that each Service Provider alone is responsible for providing workers’ compensation insurance for its applicable employees, for paying the salaries and wages of its applicable employees, for providing any employee benefits to its applicable employees, and for ensuring that all required tax withholdings are made.

 

2.             PAYMENTS

 

2.1          Services Pricing.  Flowco shall pay SPX or its applicable Affiliate fees for the SPX Services on the basis and in the manner described in Schedule A.  SPX shall pay Flowco or its applicable Affiliate fees for the Flowco Services on the basis and in the manner described in Schedule B.  Each party or its agents shall keep and maintain such books and records as may be reasonably necessary to make any applicable allocations.  During the term of this Agreement and

 

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at any time thereafter upon the reasonable request of another party, each party shall make copies of the relevant portion of such books and records available to the other party for inspection upon request and with reasonable notice.

 

2.2          Invoicing. Except for those charges with alternate invoicing and payment terms specifically set forth in the Schedules hereto, within twenty (20) days following the end of each calendar month during the term hereof, (a) SPX shall provide to Flowco a single invoice in form, format and media reasonably acceptable to Flowco totaling all charges during such month for SPX Services incurred by Flowco hereunder (each, a “SPX Invoice”) and (b) Flowco shall provide to SPX a single invoice in form, format and media reasonably acceptable to SPX totaling all charges during such month for Flowco Services incurred by SPX hereunder (each, a “Flowco Invoice” and with any SPX Invoice, each an “Invoice”).  Any failure by a party to provide an Invoice within such time period or to provide the Invoice in such form, format or media as is reasonably acceptable to the recipient of the Invoice shall not relieve the recipient of the Invoice of its obligation to pay any Invoice received after such date.  Each party agrees to provide such information as reasonably requested by the other party for use in preparation of an Invoice.  Each Invoice shall contain a brief description of each Service giving rise to such charge.

 

2.3          Payment.  Each party shall pay all amounts due under each Invoice no later than forty-five (45) days following receipt of such Invoice, without right to set-off or counterclaim (the “Payment Date”).  Each party reserves the right to require payment in advance for any out-of-pocket expenses that may be incurred in the course of performing this Agreement, including, without limitation, payroll expenses.  In addition, the recipient shall be responsible for any fees or charges payable to any government, regulatory organization or other body in connection with the Services, and any sales, use, value added, property, duties, or other taxes arising under this Agreement including in connection with payments due under any Invoice (but excluding any taxes on the net income of the Service Provider) and shall remit the amount due under this Agreement without offset for any withholdings, fees or charges in respect of any payments under this Agreement.  Each party shall pay all amounts due with respect to those charges with alternate invoicing and payment terms specifically set forth in the Schedules hereto in accordance with the relevant payment terms set forth in the Schedules.

 

2.4          Late Payments. Interest on late payments will accrue at the Prime Rate plus 2% (or the maximum legal rate, whichever is lower) calculated for the actual number of days elapsed, accrued from the applicable Payment Date up to the date of the actual receipt of payment.

 

3.             REPRESENTATIONS AND WARRANTIES

 

In addition to any representations set forth elsewhere in this Agreement (including the Schedules hereto) each party represents and warrants that:

 

3.1          Such party (including, as applicable, its Affiliates) has all necessary rights and authority to provide the Services such party will perform as a Service Provider as contemplated herein.  Each party (including, as applicable, its Affiliates) has obtained all necessary third party and governmental consents and authorizations to provide the Services such party will perform as a Service Provider as contemplated herein.

 

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3.2          Such party is not in breach of any arrangement or agreement with any third party in respect of a Service to be provided by such party that may be provided by a third party pursuant to Section 1.4.

 

4.                                      CONFIDENTIALITY

 

4.1          Information Exchanges.  Subject to applicable Law and good faith claims of privilege, each party hereto shall provide the other party with all information regarding itself and the transactions under this Agreement that the other party reasonably believes that it requires (a) in order to comply with all applicable laws, ordinances, regulations and codes in connection with the provision of Services pursuant to this Agreement or (b) to perform its obligations under this Agreement.   In addition to the foregoing information, each party shall, and shall cause its Affiliates to, afford the other party, upon reasonable advance notice, reasonable access during normal business hours to the facilities, Information, systems, infrastructure and personnel of such party and its Affiliates as reasonably necessary for the applicable recipient of Services to verify the adequacy of internal controls over information technology, reporting of financial data and related processes employed in connection with the Services being provided by any Service Provider, including in connection with verifying compliance with Section 404 of the Sarbanes-Oxley Act of 2002; provided that (i) such access shall not unreasonably interfere with any of the business or operations of the Service Provider or any of their respective Affiliates and (ii) in the event that the Service Provider determines that providing such access could be commercially detrimental, violate any Law or agreement, or waive any attorney-client privilege, then the parties shall use commercially reasonable efforts to permit such access in a manner that avoids any such harm or consequence.

 

4.2          Confidential Information.  SPX and Flowco shall, and each shall cause its Affiliates, officers, directors, employees, agents, representatives and advisors to, (a) hold in trust and maintain confidential all Confidential Information relating to the other party and (b) limit the use and disclosure of the Confidential Information solely to the purposes of such party’s obligations, benefits or rights under this Agreement; provided, however, that a party may disclose such Confidential Information that such party reasonably believes it is required to disclose by applicable Law, provided that (unless prohibited by applicable Law) it first notifies the other party hereto of such requirement and allows such party a reasonable opportunity to seek a protective order or other appropriate remedy to prevent or minimize such disclosure.  For the purposes of this Agreement, “Confidential Information” shall mean all information regarding SPX or Flowco, as applicable, of a confidential or proprietary nature, whether oral, visual, in writing or in any other tangible form, and includes, without limitation, economic, scientific, technical, product and business data, business plans, and the like, except to the extent that such information can be shown to have been (i) in the public domain through no action of the applicable receiving party or its Affiliates or any of their respective representatives or advisors, (ii) lawfully acquired from other sources by such receiving party or its Affiliates or any of their respective representatives or advisors to which it was furnished or (iii) independently developed by such receiving party or its Affiliates without use or reference to Confidential Information of the disclosing party’s or its Affiliates; provided, however, in the case of clause (ii) that, to the receiving party’s knowledge, such sources did not provide such information in breach of any confidentiality or fiduciary obligations.  Without prejudice to the rights and remedies of either party to this Agreement, a party disclosing any Confidential Information to the other party in accordance with the

 

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provisions of this Agreement shall be entitled to seek equitable relief by way of an injunction if the other party hereto breaches or threatens to breach any provision of this Section 4.2.  Upon the earlier of a request by a disclosing party or the termination of this Agreement in accordance with Section 6, each party shall promptly return or destroy all Confidential Information of the other party and copies thereof.  Upon request by the disclosing party, an authorized representative of the other party shall confirm in writing compliance with its obligation set forth in the immediately preceding sentence.

 

5.             REMEDIES; INDEMNIFICATION; LIMITATION OF LIABILITY

 

5.1          Remedies; No Warranties.  SPX and Flowco expressly agree that neither party, nor any of their respective Affiliates (nor any of the officers, directors, stockholders, employees or agents thereof) shall be liable to the other party or any of the Affiliates thereof for any claims, damages, liabilities, losses, costs or expenses (collectively, “Damages”) whatsoever relating to the Services provided by such party pursuant to this Agreement (whether as a result of any action or any failure to act), except for those Damages arising directly from such providing party’s willful misconduct or gross negligence, and, in the case of such willful misconduct or gross negligence, the remedy of the aggrieved party shall be any one or more of the following, at the aggrieved party’s election: to (a) have such Service re-performed as soon as practical without additional charge, and/or (b) terminate this Agreement as to the applicable Service as provided in Section 6.2(b), and in each case, subject to the provisions of Section 5.3.  The parties expressly agree that (i) no warranty of any kind (including any warranties of utility or fitness for any particular purpose or of merchantability or of any other type) shall be implied under this Agreement and that no warranties of any kind are made herein, (ii) except for Services specifically designated as advisory services in the Schedules hereto, it is not the intent of either party to render (in its capacity as Service Provider) nor to receive (in its capacity as recipient of Services) any professional advice or opinions, whether with regard to tax, legal, treasury, finance, employment or other business and financial matters, or technical advice, whether with regard to information technology or other matters, and neither party shall rely on, or construe, any Service rendered by or on behalf of the applicable Service Provider as such professional advice or opinions or technical advice; and (iii) each party shall seek all third-party professional advice and opinions or technical advice as it may desire or need.

 

5.2          Indemnification.

 

(a)           Flowco shall indemnify SPX and its Affiliates and the officers, directors, employees and agents of each (collectively, the “SPX Parties”), and hold each SPX Party harmless against any Damages incurred or suffered by any SPX Party in any way arising out of, relating to, or in connection with any third-party claims based on the performance of SPX Services hereunder (whether by a SPX Service Provider or by a third party as a Third-Party Service), except in the case of third party claims arising directly from SPX’s fraud, willful misconduct or gross negligence.  This Section 5.2(a) shall survive any termination of this Agreement.

 

(b)           SPX shall indemnify Flowco and its Affiliates and the officers, directors, employees and agents of each (collectively, the “Flowco Parties”), and hold each Flowco Party harmless against any Damages incurred or suffered by any Flowco Party in any way arising out of, relating to, or in connection with any third-party claims based on the performance of Flowco Services hereunder (whether by a Flowco Service Provider or by a third party as a Third-Party

 

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Service), except in the case of third-party claims arising directly from Flowco’s willful misconduct or gross negligence.  This Section 5.2(b) shall survive any termination of this Agreement.

 

(c)           The procedures contained in the indemnification and related litigation cooperation provisions of the Separation Agreement shall apply with respect to each Party’s indemnification obligations under this Section 5.2.  The right to indemnification and the remedies set forth in this Section 5 shall constitute the parties’ sole and exclusive remedies with respect to any and all claims arising under or relating to this Agreement or the Services provided hereunder.

 

5.3          Limitation of Liability.  Notwithstanding any other provision in this Agreement to the contrary, (a) other than as may be included in actual payments of Damages to third parties arising from claims subject to indemnification under Section 5.2, no party shall have any liability to the other party relating to this Agreement for damage to reputation, lost business opportunities, lost profits, mental or emotional distress, incidental, special, exemplary, punitive or indirect damages, interference with business operations or diminution in value and (b) other than claims for breaches of Section 4 and actual payments of Damages to third parties arising from claims subject to indemnification under Section 5.2, in no event shall the aggregate liability of a party to the aggrieved party for (i) Damages and (ii) costs of re-performance of a Service, relating to this Agreement (under any theory, whether in contract, tort, statutory or otherwise) exceed the aggregate amounts actually paid by the aggrieved party for Services received under this Agreement (exclusive of any amounts such aggrieved party has paid as reimbursement for pass-through expenses).

 

6.             TERM AND TERMINATION

 

6.1          Term.  Unless earlier terminated in accordance with Section 6.2 below, this Agreement shall be in effect from the Effective Time until the twelve (12) month anniversary of such date.  Except as specifically set forth on Schedule A or Schedule B, upon termination of any Service pursuant to Section 6.2 below, or upon any termination of this Agreement in accordance with its terms, the applicable Service Provider shall have no further obligation to provide the terminated Service (or any Service, in the case of termination of this Agreement) and the recipient of such terminated Service shall have no obligation to pay any fees relating to such terminated Service or Services (or to make any other payments hereunder, in the case of termination of this Agreement); provided that, notwithstanding such termination, the recipient shall remain liable to the Service Provider for fees owed and payable in respect of Services provided prior to the effective date of the termination.

 

6.2                               Termination.

 

(a)           If a party (the “Defaulting Party”) has materially breached its obligations under this Agreement and has not cured such default within thirty (30) days following the date on which the other party (the “Notifying Party”) has given written notice to the Defaulting Party specifying the facts constituting the default, the Notifying Party may, in its sole discretion, (i) suspend or terminate (or any combination thereof) providing or receiving any or all of the Services, in whole or in part, or (ii) terminate this Agreement.  Notwithstanding the foregoing sentence, neither this Agreement nor any Service shall be terminated due to a default by the

 

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Defaulting Party if such default is directly attributable to a breach of this Agreement by the Notifying Party.

 

(b)           Except as otherwise set forth in Schedule A or as provided in this Section, Flowco shall be permitted to terminate this Agreement with respect to any particular or all SPX Services to be provided by a SPX Service Provider upon thirty (30) days prior written notice to SPX (with a copy to SPX Representative) notifying SPX of the specific SPX Services that are no longer required.  Except as otherwise set forth in Schedule B or as provided in this Section, SPX shall be permitted to terminate this Agreement with respect to any particular or all Flowco Services to be provided by a Flowco Service Provider upon thirty (30) days prior written notice to Flowco notifying Flowco (with a copy to Flowco Representative) of the specific Flowco Services that are no longer required.  Notwithstanding the foregoing, for any Service that is provided in whole or in part by a third party and the Service Provider’s agreement or arrangement with such third party relating to such Service cannot be terminated upon fifteen (15) days’ prior written notice, this Agreement with respect to such Service shall not be deemed to have been terminated with respect to such Service until the earliest date by which such Service Provider’s agreement or arrangement with such third party may be terminated without payment or penalty.  SPX or Flowco, as applicable, will incrementally decrease the subsequent Invoices by the applicable amount or amounts of the relevant fees for any Services terminated by the other party hereunder.

 

(c)           SPX may suspend or terminate any or all the SPX Services hereunder effective upon not less than ten (10) days’ prior written notice from SPX to Flowco if Flowco has failed to pay any SPX Invoice or other amounts owing to SPX for SPX Services when due (as provided in Section 2.2) more than ten (10) days after SPX has given Flowco written notice of such past due amount.  Flowco may suspend or terminate any or all the Flowco Services hereunder effective upon not less than ten (10) days’ prior written notice from Flowco to SPX if SPX has failed to pay any Flowco Invoice or other amounts owing to Flowco for Flowco Services when due (as provided in Section 2.2) more than ten (10) days after Flowco has given SPX written notice of such past due amount.

 

(d)           Upon termination of this Agreement for any reason, all rights and obligations of the parties under this Agreement shall cease and be of no further force or effect, except that the provisions of Sections 2.3, 4, 5 and 7 of this Agreement shall survive any such termination or expiration.

 

(e)           Upon the end of the term or the earlier termination of this Agreement, each Service Provider shall, as promptly as practicable thereafter, deliver to the other party all books and records, or copies thereof, that pertain solely to such other party’s businesses that are used or generated in the course of the provision of Services hereunder.

 

7.             GENERAL

 

7.1          Successors and Assigns.  The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto.  Neither party may assign this Agreement or any of such party’s rights hereunder without the prior written consent of the other party; provided, however, that each party may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to one or more of its direct or indirect wholly owned Subsidiaries so long as such assignment does not have any

 

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adverse consequences to the other party or its Affiliates.  No assignment shall relieve the assigning party from any of its obligations under this Agreement and in the event of an assignment, the assigning party shall nonetheless continue to be primarily liable for all of its obligations hereunder.  Each assignee shall execute a counterpart of this Agreement agreeing to be bound by the provisions hereof.

 

7.2          Force Majeure.  No party shall bear any responsibility or liability for any damages arising out of any delay, inability to perform or interruption of its performance of its obligations under this Agreement due to any acts or omissions of the other party hereto or for events beyond its reasonable control including, without limitation, acts of God, acts of governmental authorities, acts of the public enemy or due to war, riot, flood, civil commotion, insurrection, labor difficulty, severe or adverse weather conditions, lack of or shortage of electrical power, malfunctions of equipment or software programs, or any other cause beyond the reasonable control of such party. Each party shall, as promptly as practicable, notify the other upon learning of the occurrence of such event of force majeure affecting its ability to perform its obligations hereunder.  Upon the cessation of a force majeure event, the party whose performance was suspended shall use commercially reasonable best efforts to resume its performance.

 

7.3          Relationship of the Parties.  The parties shall for all purposes be considered independent contractors with respect to each other, and neither shall be considered an employee, employer, agent, principal, partner or joint venturer of the other.

 

7.4          Intellectual Property.  Nothing in this Agreement shall be interpreted to, or shall, assign, transfer or license any intellectual property rights between the parties hereto, and each party shall retain all right, title and interest in and to their respective intellectual property rights and any and all improvements, modifications and derivative works thereof or thereto.

 

7.5          Compliance with Laws.  Each party acknowledges and agrees that the Services shall be provided only with respect to the Flowco Business or to the Infrastructurco Business, as applicable, as such business was operated immediately prior to the Closing Date or as mutually agreed by the parties hereto.  Each party covenants and agrees that it shall use the Services only in accordance with all applicable laws, and in accordance with past practices.  Each party, as a Service Provider, reserves the right to take all actions, including suspension or termination of any particular Service, that such Service Provider reasonably believes to be necessary to assure compliance with applicable laws and such actions will not constitute a breach of this Agreement.  Such Service Provider shall notify the other party promptly of any decision to suspend or terminate any Services and the reasons for any such suspension or termination of such Services.

 

7.6          Entire Agreement; Amendment.  This Agreement, including the Schedules hereto, constitutes the entire agreement between SPX and Flowco with respect to the subject matter hereof.  This Agreement shall not be amended, altered or changed except by a written agreement signed by the parties hereto.

 

7.7          No Waiver.  No delay or omission on the part of either party to this Agreement in requiring performance by the other party or in exercising any right hereunder shall operate as a waiver of any provision hereof or of any right or rights hereunder; and the waiver, omission or delay in requiring performance or exercising any right hereunder on any one occasion shall not be

 

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construed as a bar to or waiver of such performance or right, or of any right or remedy under this Agreement, on any future occasion.

 

7.8          Notices.  Any notice, request, instruction or other document to be given hereunder by any party hereto to any other party shall be in writing and shall be given (and shall be deemed to have been duly given or made upon receipt unless the day of receipt is not a Business Day, in which case it shall be deemed to have been duly given or made on the next Business Day) by delivery in person, by overnight courier service, by facsimile with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses:

 

If to SPX:   SPX Corporation 13320-A Ballantyne Corporate Place Charlotte, NC  28277 Attention:  General Counsel Telecopy number: _________   If to SPX Representative:   SPX Corporation 13320-A Ballantyne Corporate Place Charlotte, NC  28277 Attention:  Suzanne Harrington Telecopy number: _________ Email: suzanne.harrington@spx.com
If to Flowco:   SPX FLOW, Inc. 13320 Ballantyne Corporate Place Charlotte, NC  28277 Attention:  General Counsel Telecopy number: 704.752.7448   If to Flowco Representative:   SPX FLOW, Inc. 13320 Ballantyne Corporate Place Charlotte, NC  28277 Attention:  Nick Persavich Telecopy number: 980.321.7073 Email: nick.persavich@spx.com

 

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or at such other address for a party as shall be specified by like notice.

 

7.9          Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any adverse manner to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transactions contemplated hereby are fulfilled to the greatest extent possible.

 

7.10        Counterparts; Signatures.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same agreement.  This Agreement may be executed by facsimile signature.

 

7.11        Governing Law, Etc.  This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware applicable to agreements made and to be performed wholly within such jurisdiction.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of (a) the Court of Chancery of the State of Delaware (unless the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, in which case, any state or federal court within the State of Delaware) and (b) so long as both parties are headquartered in North Carolina, any state or federal court within the State of North Carolina, for the purposes of any suit, action or other proceeding arising out of or relating to this Agreement (and agrees not to commence any such suit, action or other proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document by U.S. registered mail to its address set forth in Section 7.8 shall be effective service of process for any action, suit or proceeding in the Delaware or North Carolina courts with respect to any matters to which it has submitted to jurisdiction in this Section 7.11.

 

7.12        Conflict.  This Agreement is being executed and delivered pursuant to the terms and conditions of the Separation Agreement.  In the event of any inconsistency between the terms of this Agreement and the Separation Agreement, the terms of the Separation Agreement shall control.

 

7.13        Definitions; Interpretation.  When a reference is made in this Agreement to Sections or Schedules, such reference is to a Section of, or a Schedule to, this Agreement, unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “herein,” “hereof,” “hereto” or “hereunder” are used in this Agreement, they shall be deemed to refer to this Agreement as a whole and not to any specific Section of this Agreement. 

 

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