INTERCORPORATE SERVICES AGREEMENT BETWEEN CONTRAN CORPORATION AND KEYSTONE CONSOLIDATED INDUSTRIES, INC. Dated as of January 1, 2007
Exhibit
10.6
BETWEEN
CONTRAN
CORPORATION
AND
KEYSTONE
CONSOLIDATED INDUSTRIES, INC.
Dated
as of January 1, 2007
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TABLE
OF CONTENTS
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Page
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ARTICLE
I.
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AMENDS
AND SUPERSEDES PRIOR AGREEMENT
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1
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ARTICLE
II.
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RETENTION
OF CONTRAN
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1
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Section
2.1. Performance of
Services
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1
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Section
2.2. Director
Services Not Included
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2
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Section
2.3. Outside
Services
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2
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Section
2.4. Disclaimer,
Limited Liability; Indemnification
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2
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ARTICLE
III.
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COMPENSATION
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3
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Section
3.1. Compensation
for Services
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3
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Section
3.2. Out-of-Pocket
Costs
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3
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ARTICLE
IV.
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CONFIDENTIALITY
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3
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Section
4.1. Confidentiality
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3
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ARTICLE
V.
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MISCELLANEOUS
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4
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Section
5.1. Maintenance and
Inspection of Records
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4
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Section
5.2. Notices
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4
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Section
5.3. Term;
Renewal
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4
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Section
5.4. Independent
Contractor
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4
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Section
5.5. Force
Majeure
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4
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Section
5.6. Entire
Agreement
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5
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Section
5.7.
Amendments
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5
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Section
5.8.
Severability
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5
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Section
5.9.
Counterparts
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5
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Section
5.10. Successors and
Assigns
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5
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Section
5.11. Governing
Law
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5
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Section
5.12. Submission to
Jurisdiction; Service; Waivers
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5
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Section
5.13. No
Third-Party Beneficiaries
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6
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Section
5.14. Titles and
Headings
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6
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INTERCORPORATE SERVICES
AGREEMENT
This
Intercorporate Services Agreement ("Agreement") is entered into
effective as of January 1, 2007 (the "Effective Date"), between
Contran Corporation, a Delaware corporation ("Contran"), and Keystone
Consolidated Industries, Inc., a Delaware corporation ("Keystone")
Recitals
A. Keystone
is a majority-owned subsidiary of Contran.
B. Keystone
and each of its wholly-owned subsidiaries (collectively, "KCI") 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 KCI’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 KCI, and Keystone, on its own
behalf and that of its wholly owned subsidiaries, 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 September 1, 2005 by and between Contran and
Keystone.
ARTICLE
II.
RETENTION
OF CONTRAN
Section 2.1. Performance
of Services.
(a) Keystone
hereby engages and retains Contran to perform the Services and Contran hereby
accepts and agrees to provide such Services to KCI 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 KCI, and Contran
shall not have any power to act independently on behalf of KCI other than as
specifically authorized under this Agreement or from time to time by Keystone.
Contran shall provide Services in connection with routine functions related to
the ongoing ordinary course of KCI's business. The Services rendered in
connection with the conduct of KCI'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 KCI in their roles as members of Keystone's board of
directors or any other activity related to such board of directors.
Section 2.3. Outside Services.
KCI 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 KCI 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) KCI
assumes all liability for, and agrees to defend, indemnify and hold Contran
harmless from and against all No Liability Claims. KCI 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. KCI shall promptly advance expenses as
incurred by Contran its directors, officers, employees, stockholders or agents
in connection with KCI's obligations under this Section.
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ARTICLE
III.
COMPENSATION
Section
3.1. Compensation for
Services.
(a) Contran
and Keystone shall agree on the aggregate annual amount that Keystone
shall pay Contran for the Services for a particular year.
(b) Keystone
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
Keystone, as applicable, shall promptly make appropriate payments to the other
party to reflect such change.
(d) All
charges from Contran to Keystone are intended to be equal to the actual cost of
such expenses without premium or ▇▇▇▇-up to Contran.
Section 3.2. Out-of-Pocket
Costs. In addition to the fee paid to Contran by Keystone for the
Services, Keystone 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.
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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. KCI 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:
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If
to Contran:
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Contran
Corporation.
Three
Lincoln Centre
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
General Counsel
Phone:
▇▇▇.▇▇▇.▇▇▇▇
Fax:
▇▇▇.▇▇▇.▇▇▇▇
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If
to Keystone:
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Keystone
Consolidated Industries, Inc.
Three
Lincoln Centre
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Acting General Counsel
Phone:
▇▇▇.▇▇▇.▇▇▇▇
Fax
▇▇▇.▇▇▇.▇▇▇▇
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Section 5.3. Term; Renewal.
The initial term of this Agreement shall commence as of the Effective
Date and end on December 31, 2007, 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, KCI.
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:
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(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, I VOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM AND FURTHER I VOCABLY 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.
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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: /s/▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
▇▇▇▇▇ ▇. ▇’▇▇▇▇▇, Vice President
and
Chief Financial Officer
KEYSTONE CONSOLIDATED INDUSTRIES,
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Vice President
and
Chief Financial Officer
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