INTERCORPORATE SERVICES AGREEMENT
BETWEEN
CONTRAN CORPORATION
AND
KRONOS WORLDWIDE, INC.
Dated as of October [__], 2003
TABLE OF CONTENTS
Page
Recitals....................................................................1
ARTICLE I. RETENTION OF CONTRAN............................................1
Section 1.1. Performance of Services..............................1
Section 1.2. Disclaimer, Limited Liability; Indemnification.......2
ARTICLE II. SERVICES.......................................................2
Section 2.1. Provision of Financial, Audit,
Accounting and Tax Services.........................2
Section 2.2. Provision of Other Services..........................2
ARTICLE III. COMPENSATION..................................................3
Section 3.1. Compensation for Services............................3
ARTICLE IV. CONFIDENTIALITY................................................3
Section 4.1. Confidentiality......................................3
Section 4.2. Tax Information......................................4
ARTICLE V. MISCELLANEOUS...................................................4
Section 5.1. Review by KWI........................................4
Section 5.2. Maintenance and Inspection of Records................4
Section 5.3. Indemnity............................................4
Section 5.4. Notices..............................................4
Section 5.5. Term; Renewal........................................5
Section 5.6. Independent Contractor...............................5
Section 5.7. Force Majeure........................................5
Section 5.8. Entire Agreement.....................................6
Section 5.9. Amendments...........................................6
Section 5.10. Severability........................................6
Section 5.11. Counterparts........................................6
Section 5.12. Successors and Assigns..............................6
Section 5.13. Governing Law.......................................6
Section 5.14. Submission to Jurisdiction; Service; Waivers........6
Section 5.15. No Third-Party Beneficiaries........................7
Section 5.16. Titles and Headings.................................7
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INTERCORPORATE SERVICES AGREEMENT
This Intercorporate Services Agreement ("Agreement"), is entered into
effective as of October [__], 2003 (the "Effective Date"), between Contran
Corporation, a Delaware corporation ("Contran"), and Kronos Worldwide, Inc., a
Delaware corporation ("KWI").
Recitals
A. KWI is an indirectly held subsidiary of Contran.
B. KWI is engaged in the manufacture, sales, marketing and distribution of
titanium dioxide and associated products.
C. KWI has and will have the need for executive, legal, audit, tax,
accounting, treasury, administrative, financial, risk management, technical,
consulting and similar services from time to time, but has determined that it is
not cost effective to obtain and separately maintain the infrastructure
associated therewith, particularly including the costs associated with
attracting and maintaining on its payroll on a full time basis a full complement
of skilled employees.
D. Contran is able and willing to provide the foregoing services to KWI,
and KWI desires to engage Contran as an independent contractor to provide the
same in accordance with the terms set forth in this Agreement.
Agreement
For and in consideration of the mutual promises, representations and
covenants herein contained, the parties hereto agree as follows.
ARTICLE I.
RETENTION OF CONTRAN
Section 1.1. Performance of Services.
(a) KWI hereby engages and retains Contran to perform the services set
forth in Article II (the "Services") and Contran hereby accepts and agrees
to provide such Services to KWI upon the terms and conditions hereinafter
set forth. All Services to be provided by Contran hereunder shall be
performed at the request and under the direction of KWI, and Contran shall
not have any power to act independently on behalf of KWI other than as
specifically authorized hereunder or from time to time by KWI.
(b) Contran shall determine the corporate facilities to be used in
rendering the Services and the individuals who will render such Services.
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(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 Contran 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 1.2. Disclaimer, Limited Liability; Indemnification.
(a) 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 officers, employees or agents shall not be liable to
KWI or any third party, including any governmental agency, for any claims,
losses, damages or expenses that may result from the manner in which
Contran, its officers, employees or agents render the Services or the
consequences of any failure or delay to perform any of Contran's
obligations under this Agreement, other than claims, damages or expenses
arising from Contran's gross negligence or willful or reckless misconduct
(collectively, "Claims"). KWI shall have the ultimate responsibility for
all Services.
(c) KWI shall indemnify and hold Contran harmless from Claims. KWI
shall indemnify and hold Contran's officers, employees or agents harmless
from Claims to the full extent that Contran could indemnify such person
under applicable law in effect from time to time. KWI shall advance
expenses as incurred by Contran or its officers, employees or agents in
connection with KWI's indemnification obligations under this Agreement.
ARTICLE II.
SERVICES
Section 2.1. Provision of Financial, Audit, Accounting and Tax Services.
During the term of this Agreement, Contran shall provide financial, audit,
accounting and tax services, including without limitation, operation and
administration of tax compliance, for KWI's operations in the ordinary course of
business.
Section 2.2. Provision of Other Services. During the term of this
Agreement, at the request of KWI, Contran shall provide administrative,
executive, legal, risk management, treasury, technical, consulting and other
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services required by KWI from time to time. KWI may request such other services
from time to time, including, without limitation, the following:
(a) executive and managerial functions;
(b) administration of KWI's insurance policies including
administration of worker's compensation claims;
(c) treasury functions, bank negotiations, compliance matters; and
(d) legal advice and compliance reporting.
ARTICLE III.
COMPENSATION
Section 3.1. Compensation for Services. Contran and KWI shall on or prior
to the Effective Date and before the beginning of each subsequent calendar year,
agree on the budgeted amounts of reimbursable costs and the allocation method to
be applied for such year. Such allocation method may be revised from time to
time with the consent of both parties.
(a) KWI shall pay to Contran one fourth of the budgeted annual amount
in advance quarterly around the first business day of each quarter.
(b) From time to time, the budgeted amounts may be revised to better
reflect actual expenses, and adjusted xxxxxxxx will then be made from
Contran to KWI.
(c) All charges from Contran to KWI are intended to be equal to the
actual cost of such expenses without premium or xxxx-up to Contran.
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 (other than any
such information relating solely to the business or affairs of such party that
is otherwise publicly known or available) 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
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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 4.1,
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 4.1. 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
4.1 by it and its Representatives.
Section 4.2. Tax Information. Notwithstanding anything set forth herein to
the contrary (including Section 4.1) or in any other agreement to which a party
hereto is bound, the parties hereto (and any employee, representative or other
agent of any of the parties) are hereby expressly authorized to disclose all
information relating to taxes as required by the Internal Revenue Code of 1986,
as amended or supplemented, and the regulations promulgated thereunder (the
"Code"), but only to the extent necessary to comply with the Code.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Review by KWI. All reports, memoranda, returns, statements,
contracts, agreements, regulatory submissions, applications and any other
documents arising from or in connection with the Services for or on behalf of
KWI shall be subject to review and approval by KWI.
Section 5.2. Maintenance and Inspection of Records. Contran shall keep
accurate books and records with respect to the costs and expenses incurred in
connection with the Services and such other books, accounts and records of its
operations as may be reasonably necessary for purposes of this Agreement. KWI
shall be permitted to inspect such books and records at any reasonable time.
Section 5.3. Indemnity. KWI assumes all liability for, and agrees to
defend, indemnify and hold Contran, its employees, officers, directors,
shareholders and agents, harmless from and against all demands, liabilities,
damages, costs and expenses, including attorneys' and expert witness fees
("Loss"), incurred by Contran arising from or in connection with the Services,
other than any Loss caused by the gross negligence or willful misconduct of
Contran.
Section 5.4. 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
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0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Phone: 000.000.0000
Fax: 000.000.0000
If to KWI: Kronos Worldwide, 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 5.5. Term; Renewal. The initial term of this Agreement shall
commence as of the Effective Date and end on December 31, 2003, but shall be
automatically renewed for successive terms of one year. Either party may
terminate this Agreement by giving written notice of termination to the other
party not less than sixty (60) days prior to the end of the then current term.
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 5.6. Independent Contractor. Contran shall be an independent
contractor and not an employee of, or partner or joint venture with, KWI.
Section 5.7. 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.
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Section 5.8. 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 5.9. 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 5.10. 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 5.11. 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 5.12. 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 5.13. 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 5.14. 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 WITH THE RIGHT TO OBJECT, WITH
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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 5.4.
Section 5.15. 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 5.16. 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:
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[Name, Title]
KRONOS WORLDWIDE, INC.
By:
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[Name, Title]
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