Exhibit 10.7
Intercorporate Services Agreement
between
Kronos Worldwide, Inc.,
Kronos International, Inc.
Kronos Canada, Inc.
and
Kronos (US), Inc.
Dated as of January 1, 2005
TABLE OF CONTENTS
Page
ARTICLE I. AMENDS AND SUPERSEDES PRIOR AGREEMENT 1
ARTICLE II. RETENTION OF KRONOS WORLDWIDE 2
Section 2.1. Performance of Services 2
Section 2.2. Director Services Not Included 2
Section 2.3. Outside Services 2
Section 2.4. Disclaimer, Limited Liability; Indemnification 3
ARTICLE III. COMPENSATION 3
Section 3.1. Compensation for Services 3
Section 3.2. Out-of-Pocket Costs 4
ARTICLE IV. CONFIDENTIALITY 4
Section 4.1. Confidentiality 4
ARTICLE V. MISCELLANEOUS 4
Section 5.1. Maintenance and Inspection of Records 4
Section 5.2. Notices 4
Section 5.3. Term; Renewal 5
Section 5.4. Independent Contractor 5
Section 5.5. Force Majeure 5
Section 5.6. Entire Agreement 6
Section 5.7. Amendments 6
Section 5.8. Severability 6
Section 5.9. Counterparts 6
Section 5.10. Successors and Assigns 6
Section 5.11. Governing Law 6
Section 5.12. Submission to Jurisdiction; Service; Waivers 6
Section 5.13. No Third-Party Beneficiaries 7
Section 5.14. Titles and Headings 7
INTERCORPORATE SERVICES AGREEMENT
This Intercorporate Services Agreement ("Agreement") is entered into
effective as of January 1, 2005 (the "Effective Date"), between Kronos
Worldwide, Inc., a Delaware corporation ("Kronos Worldwide"), Kronos
International, Inc., a Delaware corporation ("Kronos International"), Kronos
Canada, Inc., a Canadian corporation ("Kronos Canada"), and Kronos (US), Inc., a
Delaware corporation ("Kronos US").
Recitals
A. Kronos International is a direct wholly owned subsidiary of Kronos
Worldwide.
B. Kronos Canada is a direct wholly owned subsidiary of Kronos Worldwide
C. Kronos US is an indirect wholly owned subsidiary of Kronos Worldwide.
D. Each of Kronos International, Kronos Canada and Kronos US (collectively,
the "Kronos Subsidiaries") has and will have the need for executive,
management, financial, audit, accounting, tax, legal, insurance, risk
management, treasury, human resources, technical, consulting,
administrative and other services as required from time to time in the
ordinary course of their businesses (collectively, the "Services"), but
each 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.
E. Kronos Worldwide is able and willing to provide the Services to the Kronos
Subsidiaries, and the Kronos Subsidiaries each desire to engage Kronos
Worldwide as an independent contractor to provide the Services in
accordance with the terms set forth in this Agreement.
F. The Services provided hereunder to each of the Kronos Subsidiaries may be
assigned by the Kronos Subsidiaries to other subsidiaries of Kronos
Worldwide as provided for hereunder.
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, 2004 by and between
Kronos Worldwide and Kronos International and that certain Intercorporate
Services Agreement effective as of January 1, 2004 by and between Kronos
Worldwide and Kronos US.
ARTICLE II.
RETENTION OF KRONOS WORLDWIDE
Section 2.1. Performance of Services.
(a) The Kronos Subsidiaries each hereby engages and retains Kronos Worldwide to
perform the Services and Kronos Worldwide hereby accepts and agrees to
provide such Services to the Kronos Subsidiaries upon the terms and
conditions set forth in this Agreement. All Services to be provided by
Kronos Worldwide hereunder shall be performed at the request and under the
direction of the Kronos Subsidiaries, and Kronos Worldwide shall not have
any power to act independently on behalf of the Kronos Subsidiaries other
than as specifically authorized under this Agreement or from time to time
by such subsidiaries. Kronos Worldwide shall provide Services in connection
with routine functions related to the ongoing ordinary course of business
of the Kronos Subsidiaries. The Services rendered in connection with the
conduct of business of the Kronos Subsidiaries 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) Kronos Worldwide shall determine the corporate facilities to be used in
rendering the Services and the individuals who will render such Services.
(c) Kronos Worldwide 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 Kronos Worldwide who perform similar services
for Kronos Worldwide or for other affiliates of Kronos Worldwide, 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 Kronos Worldwide, for similar or different services.
(f) Each of the Kronos Subsidiaries is authorized hereunder to assign Services
to their respective subsidiaries, and Kronos Worldwide agrees to provide
Services to such subsidiaries.
Section 2.2. Director Services Not Included. The Services do not include
any services that employees of Kronos Worldwide may provide to the Kronos
Subsidiaries in their roles as members of the board of directors of the Kronos
Subsidiaries or any other activity related to such board of directors.
Section 2.3. Outside Services. The Kronos Subsidiaries 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 Kronos Worldwide
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, Kronos Worldwide
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) Kronos Worldwide, its directors, officers, employees, stockholders or
agents shall not be liable to the Kronos Subsidiaries, other Kronos
Worldwide subsidiaries 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 Kronos
Worldwide or its directors, officers, employees, stockholders or agents
(collectively, "No Liability Claims").
(c) Each of the Kronos Subsidiaries assumes all liability for, and agrees to
defend, indemnify and hold Kronos Worldwide harmless from and against all
No Liability Claims. Each of the Kronos Subsidiaries assumes all liability
for, and agrees to defend, indemnify and hold Kronos Worldwide's directors,
officers, employees, stockholders or agents harmless from, No Liability
Claims to the same extent that Kronos Worldwide could assume such liability
for, or defend, indemnify and hold harmless, such entity or person. The
Kronos Subsidiaries shall promptly advance expenses as incurred by Kronos
Worldwide its directors, officers, employees, stockholders or agents in
connection with the Kronos Subsidiaries' respective obligations under this
Section.
ARTICLE III.
COMPENSATION
Section 3.1. Compensation for Services.
(a) Kronos Worldwide and each of the Kronos Subsidiaries shall agree on the
aggregate annual amount that the Kronos Subsidiaries each shall pay Kronos
Worldwide for the Services for a particular year.
(b) Each of the Kronos Subsidiaries shall pay to Kronos Worldwide one fourth of
the respective 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,
Kronos Worldwide or each of the Kronos Subsidiaries, as applicable, shall
promptly make appropriate payments to the other party to reflect such
change.
(d) All charges from Kronos Worldwide to the Kronos Subsidiaries are intended
to be equal to the actual cost of such expenses without premium or xxxx-up
to Kronos Worldwide.
Section 3.2. Out-of-Pocket Costs. In addition to the fees paid to Kronos
Worldwide by the Kronos Subsidiaries for the Services, the Kronos Subsidiaries
will promptly pay to Kronos Worldwide the amount of out-of-pocket costs incurred
by Kronos Worldwide in rendering such Services to each entity.
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. Kronos Worldwide shall
keep accurate books, accounts and records regarding the Services as may be
reasonably necessary for purposes of this Agreement. The Kronos Subsidiaries
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 Kronos Worldwide: 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
If to Kronos International: Kronos International, Inc.
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 Kronos Canada: Kronos Canada, Inc.
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Vice President -
Treasurer
Phone: 000.000.0000
Fax: 000.000.0000
If to Kronos US: Kronos (US), 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, 2005, 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. Kronos Worldwide shall be an
independent contractor and not an employee of, or partner or joint venturer
with, the Kronos Subsidiaries.
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. Notwithstanding the foregoing, each of the Kronos
Subsidiaries are permitted to assign Services to other subsidiaries of Kronos
Worldwide. 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 the subsidiaries of Kronos Worldwide to
which Services have been assigned by the Kronos Subsidiaries and should not be
deemed to confer upon any other 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.
Kronos Worldwide, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx, Vice President, General
Counsel and Secretary
Kronos International, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx, Vice President,
Finance and Chief Executive Officer
Kronos Canada, Inc.
By: /s/ Xxxx X. St. Wrba
-----------------------------------
Xxxx X. St. Wrba, Vice President -
Treasurer
Kronos (US), Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx, Vice President,
Finance and Chief Financial Officer
