Intercorporate Services Agreement
between
Contran Corporation
and
Kronos Worldwide, 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 Kronos Worldwide, Inc., a
Delaware corporation ("Kronos Worldwide")
Recitals
A........Kronos Worldwide is an indirectly held subsidiary of Contran.
B........Kronos Worldwide 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 Kronos Worldwide'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 Kronos
Worldwide, and Kronos Worldwide 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 November 6, 2003 by and
between Contran and Kronos Worldwide.
ARTICLE II.
RETENTION OF CONTRAN
Section 2.1. Performance of Services.
(a) Kronos Worldwide hereby engages and retains Contran to
perform the Services and Contran hereby accepts and agrees to provide
such Services to Kronos Worldwide 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
Kronos Worldwide, and Contran shall not have any power to act
independently on behalf of Kronos Worldwide other than as specifically
authorized under this Agreement or from time to time by Kronos
Worldwide. Contran shall provide Services in connection with routine
functions related to the ongoing ordinary course of Kronos Worldwide's
business. The Services rendered in connection with the conduct of
Kronos Worldwide'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 Kronos
Worldwide in their roles as members of Kronos Worldwide's board of
directors or any other activity related to such board of directors.
Section 2.3. Outside Services. Kronos Worldwide 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 Kronos Worldwide 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) Kronos Worldwide assumes all liability for, and agrees to
defend, indemnify and hold Contran harmless from and against all No
Liability Claims. Kronos Worldwide 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. Kronos
Worldwide shall promptly advance expenses as incurred by Contran its
directors, officers, employees, stockholders or agents in connection
with Kronos Worldwide's obligations under this Section.
ARTICLE III.
COMPENSATION
Section 3.1. Compensation for Services.
(a) Contran and Kronos Worldwide shall agree on the aggregate
annual amount that Kronos Worldwide shall pay Contran for the Services
for a particular year.
(b) Kronos Worldwide 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 Kronos Worldwide, as applicable, shall
promptly make appropriate payments to the other party to reflect such
change.
(d) All charges from Contran to Kronos Worldwide are intended to
be equal to the actual cost of such expenses without premium or
mark-up to Contran.
Section 3.2. Out-of-Pocket Costs. In addition to the fee paid to
Contran by Kronos Worldwide for the Services, Kronos Worldwide 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. Kronos
Worldwide 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
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Attention: General Counsel
Phone: 972.450.4251
Fax: 972.448.1445
If to Kronos Worldwide: Kronos Worldwide, Inc.
Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Attention: General Counsel
Phone: 972.450.4251
Fax: 972.448.1445
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, Kronos Worldwide.
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:
Bobby D. O'Brien, Vice President
Kronos Worldwide, Inc.
By:
Robert D. Graham, Vice President