Exhibit 10.9
Services Agreement
between
Service Providers
and
Customers
Dated as of January 1, 2004
TABLE OF CONTENTS
Page
ARTICLE I. AMENDS AND SUPERSEDES PRIOR AGREEMENT 1
ARTICLE II. RETENTION OF PROVIDER 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. Payment 3
Section 3.3. Currency and Exchange Rate 3
ARTICLE IV. CONFIDENTIALITY 3
Section 4.1. Confidentiality 3
ARTICLE V. MISCELLANEOUS 3
Section 5.1. Maintenance and Inspection of Records 3
Section 5.2. Notices 3
Section 5.3. Term; Renewal 4
Section 5.4. Force Majeure 4
Section 5.5. Entire Agreement 4
Section 5.6. Amendments 4
Section 5.7. Severability 4
Section 5.8. Counterparts 4
Section 5.9. Successors and Assigns 5
Section 5.10. No Third-Party Beneficiaries 5
Section 5.11. Titles and Headings 5
SERVICES AGREEMENT
This Services Agreement ("Agreement") is entered into effective as of
January 1, 2004 (the "Effective Date"), between the service providers listed on
Schedule 1 attached hereto (each a "Provider" and collectively, the "Providers")
and the service purchasers listed on Schedule 2 attached hereto (each a
"Purchaser" and collectively the "Purchasers").
Recitals
A. Provider is able and willing to provide the services (collectively, the
"Services"), that are listed under its name on Schedule 3 attached hereto.
B. Purchaser has and will have the need for various Services performed by
Provider.
C. Purchaser desires to engage Provider 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 any and all Services
Agreements currently in effect between Provider and Purchaser.
ARTICLE II.
RETENTION OF PROVIDER
Section 2.1. Performance of Services.
(a) Purchaser hereby engages and retains Provider to perform the Services and
Provider hereby accepts and agrees to provide such Services to Purchaser
upon the terms and conditions set forth in this Agreement. All Services to
be provided by Provider hereunder shall be performed at the request and for
the benefit of the Purchaser. Provider shall provide Services in connection
with routine functions related to the ongoing ordinary course of
Purchaser's business. The Services rendered in connection with the conduct
of Purchaser'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) Provider shall determine the facilities to be used in rendering the
Services and the individuals who will render such Services.
(c) Provider 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 Provider who perform similar services for
Provider or for other affiliates of Provider or both, will perform the
Services.
Section 2.2. Director Services Not Included. The Services do not include
any services that employees or agents of Provider may provide to Purchaser in
their roles as members of Purchaser's board of directors or any other activity
related to such board of directors.
Section 2.3. Outside Services. Purchaser 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 Provider 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, Provider 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. Purchaser has the right to reject any Services
provided without Purchaser's consent.
(b) Provider, its directors, officers, employees, stockholders or agents shall
not be liable to Purchaser 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 Provider or
its directors, officers, employees, stockholders or agents (collectively,
"No Liability Claims").
(c) Purchaser assumes all liability for, and agrees to defend, indemnify and
hold Provider harmless from and against all No Liability Claims. Purchaser
assumes all liability for, and agrees to defend, indemnify and hold
Provider's directors, officers, employees, stockholders or agents harmless
from, No Liability Claims to the same extent that Provider could assume
such liability for, or defend, indemnify and hold harmless, such entity or
person. Purchaser shall promptly advance expenses as incurred by Provider
its directors, officers, employees, stockholders or agents in connection
with Purchaser 's obligations under this Section.
ARTICLE III.
COMPENSATION
Section 3.1. Compensation for Services. The fee for Services performed by
Provider on behalf of Purchaser (the "Services Fee") shall be determined
according to the provisions of Schedule 4 attached hereto.
Section 3.2. Payment. Purchaser shall pay the Services Fee to Provider in
accordance with Schedule 5 attached hereto.
Section 3.3. Currency and Exchange Rate. If conversion to another currency
is required, the monthly corporate exchange rate shall be used. All amounts
shall be denominated in the currency of the Provider.
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. Provider shall keep
accurate books, accounts and records regarding the Services as may be reasonably
necessary for purposes of this Agreement. Purchaser 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 or
electronic mail and shall be deemed given on the date on which such notice is
received.
Section 5.3. Term; Renewal. The initial term of this Agreement shall
commence as of the Effective Date and end on the first anniversary of the
Effective Date, but shall be automatically renewed on an annual 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 one
hundred eighty (180) days in advance of the first day of each annual renewal. 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
sixty (60) days following such termination.
Section 5.4. 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 5.5. Entire Agreement. All Schedules and Exhibits to this Agreement
are incorporated by reference herein and shall form a part of this Agreement as
though expressly set forth herein. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof.
There is no understanding, representation or warranty of any kind, express or
implied, not expressly set forth in this Agreement.
Section 5.6. 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 5.7. 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 5.8. 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 5.9. 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 5.10. No Third-Party Beneficiaries; Independent Contractors. 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. Provider shall be an independent contractor and not an employee
of, or partner or joint venture with, Purchaser.
Section 5.11. 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.
Provider:
Kronos Europe S.A./N.V.
By:/s/ Erik van der Auwera By:/s/ Henry Basson
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Name: Erik van der Auwera Name: Henry Basson
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Title: Title:
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Kronos Titan GmbH
By:/s/ Volker Roth By:/s/ Ufert Fiand
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Name: Volker Roth Name: Ufert Fiand
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Title: Title:
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Kronos International, Inc.
By:/s/ Volker Roth By:/s/ Ulfert Fiand
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Name: Volker Roth Name: Ulfert Fiand
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Title: Title:
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Kronos (US), Inc.
By:/s/ Gregory M. Swalwell
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Name: Gregory M. Swalwell
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Title:Vice President Finance; Chief FInancial OFficer
- ------------------------------------------------------
Purchaser:
Kronos Denmark ApS
By:/s/ Volker Roth By:/s/ Andrew Kasprowiak
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Name: Volker Roth Name: Andrew Kasprowiak
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Title: Title:
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Kronos Europe S.A./N.V.
By:/s/ Erik van der Auwera By:/s/ Henry Basson
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Name: Erik van der Auwera Name: Henry Basson
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Title: Title:
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Kronos Titan GmbH
By:/s/ Volker Roth By:/s/ Ulfert Fiand
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Name: Volker Roth Name: Uflert Fiand
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Title: Title:
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Kronos Limited
By:/s/ Paul Turner
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Name: Paul Turner
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Title:
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Societe Industrielle Du Titane, S.A.
By:/s/ Thomas Cerny
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Name:Thomas Cerny
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Title:
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Kronos International, Inc.
By:/s/ Volker Roth By:/s/ Ulfert Fiand
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Name: Volker Roth Name: Uflert Fiand
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Title: Title:
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Kronos B.V.
By:/s/ Erik van der Auwera By:/s/ Henry Basson
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Name: Erik van der Auwera Name: Henry Basson
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Title: Title:
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Kronos Titan AS
By:/s/ Terje Karlsen By:/s/Per Thoen
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Name: Terje Karlsen Name: Per Thoen
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Title: Title:
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Titania AS
By:/s/ Ingvar Sivertsen By:/s/ Oystein Rushfeldt
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Name: Ingvar Sivertsen Name: Oystein Rushfeldt
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Title: Title:
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Kronos Canada, Inc.
By:/s/ Antoine Doan
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Name: Antoine Doan
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Title:
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SCHEDULE 1
PROVIDERS
The following entities are each a "Provider" under the Agreement.
1. Kronos Europe S.A./N.V.
2. Kronos (US), Inc.
3. Kronos Titan GmbH
4. Kronos International, Inc.
SCHEDULE 2
PURCHASERS
The following entities are each a "Purchaser" under the Agreement. With respect
to each entity listed below that is also listed as a "Provider" on Schedule 1
attached hereto, the parties understand and agree that such entity is included
in the Agreement for purposes of selling to, or purchasing from, other
Purchasers and Providers, respectively, hereunder and not itself.
1. Kronos Denmark ApS
2. Kronos Canada, Inc.
3. Kronos Europe S.A./N.V.
4. Kronos Titan GmbH
5. Kronos Limited
6. Societe Industrielle Du Titane, S.A.
7. Kronos International, Inc.
8. Kronos B.V.
9. Kronos Titan AS
10. Titania AS
SCHEDULE 3
PROVIDER SERVICES
Each Provider offers the Services listed below to all or certain Purchasers:
1. Kronos Europe S.A./N.V.
Human Relations, Finance & Control, Information Technology, Sales and
Marketing, Treasury and Internal Audit.
2. Kronos (US), Inc.
Management, Credit and Collections and Information Technology.
3. Kronos Titan GMBH
Credit & Collections, Logistics, Treasury, Customer Services and
Purchasing.
4. Kronos International, Inc.
Technical Services Support, Advertising, Finance & Control, Human
Relations, Purchasing, Legal and Production Management.
SCHEDULE 4
SERVICES FEE
The Services Fee shall be determined as follows:
(a) The Services Fee shall be based on an allocation of the Provider's fully
burdened cost for such Services. Provider's fully burdened cost (the
"Cost") shall be based on Provider's direct cost of Services plus related
overhead, including rent (if any), depreciation, utilities, supplies, fees,
travel and entertainment and subscriptions. The Services Fee shall also
include a 5% administrative fee.
(b) Provider's Cost shall be allocated as follows:
(i) Information Technology Services shall be allocated based on CPU usage
and IT staff time to the extent such Services can be measured in such
manner.
(ii) Management, Advertising, Technical Services Support, Credit &
Collections, Sales & Marketing, Finance & Control, Legal, Treasury,
Internal Audit, Production Management, Customer Services and Logistics
Services shall be allocated based on the time spent by Provider's
personnel performing such Services as determined by the applicable
department head to the extent such Services can be measured in such
manner. Expenses that cannot be measured based on time spent shall be
allocated based on the ratio of rated production capacity of the
Purchaser compared to total rated production capacity of the parties
involved.
(iii) Human Relations Services shall be allocated based on headcount.
(iv) Purchasing Services shall be allocated based on the ratio of the value
of products purchased by Provider for Purchaser to the value of all
products purchased by Provider.
(c) Provider and Purchaser shall agree on an annual budgeted aggregate Services
Fee for the Services to be performed for each year.
(d) From time to time Provider and Purchaser may amend the annual budgeted
aggregate Services Fee to account for changes in Services or costs of
Services provided during the period in question.
(e) Within the first quarter following the closing of each year, Provider shall
review the actual cost of the Services performed, and Provider and
Purchaser shall perform a true-up of the Services Fee for such year (the
"True-Up") to reflect all required adjustments.
SCHEDULE 5
PAYMENT
Payment of the Services Fee shall be as follows:
(a) Purchaser shall pay to Provider one fourth of the annual budgeted aggregate
Services Fee on a quarterly basis on the fifteenth business day of the
month following receipt of invoice.
(b) Purchaser shall pay to Provider (or Provider shall pay to Purchaser) the
True-Up amount of the Services Fee. The True-Up amount shall be due and
payable net 15 days from the date of the credit or debit note.
(c) All payments due hereunder may be offset between the parties through the
Kronos netting system.