Intercorporate Services Agreement
between
Contran Corporation
and
NL Industries, Inc.
Dated as of January 1, 2004
TABLE OF CONTENTS
Page
ARTICLE I. AMENDS AND SUPERSEDES PRIOR AGREEMENT.............................1
ARTICLE II. RETENTION OF CONTRAN.............................................1
Section 2.1. Performance of Services................................1
Section 2.2. Director Services Not Included.........................2
Section 2.3. Outside Services.......................................2
Section 2.4. Disclaimer, Limited Liability; Indemnification.........2
ARTICLE III. COMPENSATION....................................................3
Section 3.1. Compensation for Services..............................3
Section 3.2. Out-of-Pocket Costs....................................3
ARTICLE IV. CONFIDENTIALITY..................................................3
Section 4.1. Confidentiality........................................3
ARTICLE V. MISCELLANEOUS.....................................................4
Section 5.1. Maintenance and Inspection of Records..................4
Section 5.2. Notices................................................4
Section 5.3. Term; Renewal..........................................4
Section 5.4. Independent Contractor.................................4
Section 5.5. Force Majeure..........................................4
Section 5.6. Entire Agreement.......................................5
Section 5.7. Amendments.............................................5
Section 5.8. Severability...........................................5
Section 5.9. Counterparts...........................................5
Section 5.10. Successors and Assigns................................5
Section 5.11. Governing Law.........................................5
Section 5.12. Submission to Jurisdiction; Service; Waivers..........5
Section 5.13. No Third-Party Beneficiaries..........................6
Section 5.14. Titles and Headings...................................6
INTERCORPORATE SERVICES AGREEMENT
This Intercorporate Services Agreement ("Agreement") is entered into
effective as of January 1, 2004 (the "Effective Date"), between Contran
Corporation, a Delaware corporation ("Contran"), and NL Industries, Inc., a New
Jersey corporation ("NL")
Recitals
A........NL is an indirectly held subsidiary of Contran.
B........NL has and will have the need for executive, management,
financial, audit, accounting, tax, legal, insurance, risk management,
treasury, aviation, human resources, technical, consulting, administrative
and other services as required from time to time in the ordinary course of
NL's business (collectively, the "Services"), but has determined that it is
not cost effective to obtain and separately maintain the infrastructure
associated with the Services, particularly the costs associated with
attracting and maintaining on its payroll on a full time basis a full
complement of skilled employees.
C........Contran is able and willing to provide the Services to NL,
and NL desires to engage Contran as an independent contractor to provide
the Services in accordance with the terms set forth in this Agreement.
Agreement
For and in consideration of the mutual promises, representations and
covenants contained in this Agreement, the parties agree as follows.
ARTICLE I.
AMENDS AND SUPERSEDES PRIOR AGREEMENT
This Agreement amends and supersedes in its entirety that certain
Intercorporate Services Agreement effective as of January 1, 2003 by and
between Contran and NL.
ARTICLE II.
RETENTION OF CONTRAN
Section 2.1. Performance of Services.
(a) NL hereby engages and retains Contran to perform the Services
and Contran hereby accepts and agrees to provide such Services to NL
upon the terms and conditions set forth in this Agreement. All
Services to be provided by Contran hereunder shall be performed at the
request and under the direction of NL, and Contran shall not have any
power to act independently on behalf of NL other than as specifically
authorized under this Agreement or from time to time by NL. Contran
shall provide Services in connection with routine functions related to
the ongoing ordinary course of NL's business. The Services rendered in
connection with the conduct of NL's business will be on a scale
compared to that existing on the effective date of this Agreement,
adjusted for internal corporate growth or contraction, but not for
major corporate acquisitions or divestitures, and that adjustments may
be required to the terms of this Agreement in the event of such major
corporate acquisitions, divestitures or special projects.
(b) Contran shall determine the corporate facilities to be used
in rendering the Services and the individuals who will render such
Services.
(c) Contran will use reasonable efforts to make the Services
available with substantially the same degree of care as it employs in
making similar services available for its own operations.
(d) Those employees or agents of Contran who perform similar
services for Contran or for other affiliates of Contran, or both, will
perform the Services.
(e) Nothing herein shall be deemed to restrict either party or
its directors, officers, employees or agents from engaging in any
business, or from contracting with other parties, including, without
limitation, other affiliates of Contran, for similar or different
services.
Section 2.2. Director Services Not Included. The Services do not
include any services that employees of Contran may provide to NL in their
roles as members of NL's board of directors or any other activity related
to such board of directors.
Section 2.3. Outside Services. NL will continue to bear all other
costs required for outside services including, but not limited to, the
outside services of attorneys, auditors, trustees, consultants, transfer
agents and registrars, and it is expressly understood that Contran assumes
no liability for any expenses or services other than those stated in this
Article.
Section 2.4. Disclaimer, Limited Liability; Indemnification.
(a) Except as expressly provided elsewhere in this Agreement,
Contran makes no express or implied representations, warranties or
guarantees relating to the Services or the quality or results of the
Services to be performed under this Agreement.
(b) Contran, its directors, officers, employees, stockholders or
agents shall not be liable to NL or any third party, including any
governmental agency, for any claims, demands, losses, liabilities,
damages, costs or expenses, including attorneys' and expert witness
fees, arising from or in connection with the Services, other than
those arising from or in connection with the gross negligence or
willful misconduct of Contran or its directors, officers, employees,
stockholders or agents (collectively, "No Liability Claims").
(c) NL assumes all liability for, and agrees to defend, indemnify
and hold Contran harmless from and against all No Liability Claims. NL
assumes all liability for, and agrees to defend, indemnify and hold
Contran's directors, officers, employees, stockholders or agents
harmless from, No Liability Claims to the same extent that Contran
could assume such liability for, or defend, indemnify and hold
harmless, such entity or person. NL shall promptly advance expenses as
incurred by Contran its directors, officers, employees, stockholders
or agents in connection with NL's obligations under this Section.
ARTICLE III.
COMPENSATION
Section 3.1. Compensation for Services.
(a) Contran and NL shall agree on the aggregate annual amount
that NL shall pay Contran for the Services for a particular year.
(b) NL shall pay to Contran one fourth of the annual amount in
advance quarterly around the first business day of each quarter.
(c) From time to time upon a change to the annual amount for a
particular year, Contran or NL, as applicable, shall promptly make
appropriate payments to the other party to reflect such change.
(d) All charges from Contran to NL are intended to be equal to
the actual cost of such expenses without premium or xxxx-up to
Contran.
Section 3.2. Out-of-Pocket Costs. In addition to the fee paid to
Contran by NL for the Services, NL will promptly pay to Contran the amount
of out-of-pocket costs incurred by Contran in rendering such Services.
ARTICLE IV.
CONFIDENTIALITY
Section 4.1. Confidentiality. Each party shall hold and shall cause
its directors, officers, employees, agents, consultants and advisors
("Representatives") to hold in strict confidence all information concerning
the other party unless (i) such party is compelled to disclose such
information by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law or (ii) such information can be shown
to have been (A) in the public domain through no fault of such party or (B)
lawfully acquired on a non-confidential basis from other sources.
Notwithstanding the foregoing, such party may disclose such information to
its Representatives so long as such persons are informed by such party of
the confidential nature of such information and are directed by such party
to treat such information confidentially. If such party or any of its
Representatives becomes legally compelled to disclose any documents or
information subject to this Section, such party will promptly notify the
other party so that the other party may seek a protective order or other
remedy or waive such party's compliance with this Section. If no such
protective order or other remedy is obtained or waiver granted, such party
will furnish only that portion of the information that it is advised by
counsel is legally required and will exercise its reasonable efforts to
obtain adequate assurance that confidential treatment will be accorded such
information. Such party agrees to be responsible for any breach of this
Section by it and its Representatives.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Maintenance and Inspection of Records. Contran shall keep
accurate books, accounts and records regarding the Services as may be
reasonably necessary for purposes of this Agreement. NL shall be permitted
to inspect such books, accounts and records at any reasonable time.
Section 5.2. Notices. All notices and other communications hereunder shall
be in writing, and shall be delivered by hand or mailed by registered or
certified mail (return receipt requested) or transmitted by facsimile to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and shall be deemed given on the date on
which such notice is received:
If to Contran: Contran Corporation.
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Phone: 000.000.0000
Fax: 000.000.0000
If to NL: NL Industries, Inc.
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Phone: 000.000.0000
Fax: 000.000.0000
Section 5.3. Term; Renewal. The initial term of this Agreement shall
commence as of the Effective Date and end on December 31, 2004, but shall
be automatically renewed on a quarter-to-quarter basis after the expiration
of the initial term. Either party may terminate this Agreement by giving
written notice of termination to the other party not less than thirty (30)
days in advance of the first day of each successive quarter. In addition,
in the event of a material default hereunder by a party, the non-defaulting
party may terminate this Agreement upon thirty (30) days prior written
notice if such default remains uncured and is continuing for twenty (20)
days after receipt by the defaulting party of such written notice of intent
to terminate. A final accounting and payment by one party to the other of
all amounts payable hereunder shall be made pursuant to the terms hereof
within thirty (30) days following such termination.
Section 5.4. Independent Contractor. Contran shall be an independent
contractor and not an employee of, or partner or joint venturer with, NL.
Section 5.5. Force Majeure. No party shall be in default of this
Agreement or liable to the other party for any delay or default in
performance where occasioned by any cause of any kind or extent beyond its
control, including but not limited to, armed conflict or economic
dislocation resulting therefrom; embargoes; shortages of labor, raw
materials, production facilities or transportation; labor difficulties;
civil disorders of any kind; action of any civil or military authorities
(including, priorities and allocations); fires; floods and accidents. The
dates on which the obligations of the party are to be fulfilled shall be
extended for a period equal to the time lost by reason of any delay
arising, directly or indirectly from:
(a) Any of the foregoing causes, or
(b) Inability of a party, as a result of causes beyond its
reasonable control, to obtain instruction or information from the
other party in time to perform its obligations by such dates.
Section 5.6. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof
and all prior agreements or understandings shall be deemed merged herein.
No representations, warranties and if certifications, express or implied,
shall exist as between the parties except as stated herein.
Section 5.7. Amendments. No amendments, waivers or modifications
hereof shall be made or deemed to have been made unless in writing,
executed by the party to be bound thereby.
Section 5.8. Severability. If any provision in this Agreement or the
application of such provision to any person or circumstance shall be
invalid, illegal or unenforceable, the remainder of this Agreement or the
application of such provision to persons or circumstances other than those
to which it is held invalid, illegal or unenforceable shall not be affected
thereby.
Section 5.9. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute this
Agreement.
Section 5.10. Successors and Assigns. This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party
hereto without the prior written consent of the other party hereto, and any
attempt to assign any rights or obligations arising, under this Agreement
without such consent shall be void. This Agreement shall be binding, upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 5.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the state of Texas,
without giving effect to any choice of law or conflict of law provision or
rule (whether of the state of Texas or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the state
of Texas.
Section 5.12. Submission to Jurisdiction; Service; Waivers. WITH
RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT, EACH PARTY (A)
IRREVOCABLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE JURISDICTION OF
THE FEDERAL OR STATE COURTS LOCATED IN DALLAS COUNTY, TEXAS (B) AGREES THAT
THE VENUE FOR ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SHALL BE EXCLUSIVE TO SUCH COURTS, AND (C) IRREVOCABLY
WAIVES ANY OBJECTION IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
BROUGHT IN ANY SUCH COURT, IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM AND FURTHER IRREVOCABLY WAIVES THE RIGHT TO OBJECT, WITH
RESPECT TO SUCH CLAIM, SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER IT. EACH PARTY HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN ANY OF THE AFORESAID COURTS BY THE MAILING OF COPIES OF SUCH
PROCESS TO THE PARTY, BY CERTIFIED OR REGISTERED MAIL AT THE ADDRESS
SPECIFIED IN SECTION 5.2.
Section 5.13. No Third-Party Beneficiaries. This Agreement is solely
for the benefit of the parties hereto and should not be deemed to confer
upon third parties any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without reference to this
Agreement.
Section 5.14. Titles and Headings. Titles and headings to sections
herein are inserted for convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this
Agreement.
Executed as of the Effective Date.
Contran Corporation
By:
Xxxxx X. X'Xxxxx, Vice President
NL Industries, Inc.
By:
Xxxxxx X. Xxxxxx, Vice President
