Intercorporate Services Agreement between Contran Corporation and Titanium Metals Corporation Dated as of January 1, 2008
Exhibit
10.8
between
Contran
Corporation
and
Titanium
Metals Corporation
Dated
as of January 1, 2008
TABLE OF CONTENTS
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Page
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ARTICLE I. AMENDS
AND SUPERSEDES PRIOR AGREEMENT
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1 | ||
| ARTICLE II. RETENTION OF CONTRAN | 1 | ||
| Section 2.1. |
Performance of
Services
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1 | |
| Section 2.2. |
Director
Services Not Included
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2 | |
| Section 2.3. |
Outside
Services
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2 | |
| Section 2.4. |
Disclaimer,
Limited Liability; Indemnification
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2
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| ARTICLE III. COMPENSATION |
3
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| Section 3.1. |
Compensation
for Services
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3 | |
| Section 3.2. |
Out-of-Pocket
Costs
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3
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| ARTICLE IV. CONFIDENTIALITY |
3
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| Section 4.1. |
Confidentiality
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3
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| ARTICLE V. MISCELLANEOUS |
4
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| Section 5.1. |
Maintenance
and Inspection of Records
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4 | |
| Section 5.2. |
Notices
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4 | |
| Section 5.3. |
Term;
Renewal
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4 | |
| Section 5.4. |
Independent
Contractor
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4 | |
| Section 5.5. |
Force
Majeure
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4 | |
| Section 5.6. |
Entire
Agreement
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5 | |
| Section 5.7. |
Amendments
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5 | |
| Section 5.8. |
Severability
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5 | |
| Section 5.9. |
Counterparts
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5 | |
| Section 5.10. |
Successors
and Assigns
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5 | |
| Section 5.11. |
Governing
Law
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5 | |
| Section 5.12. |
Submission
to Jurisdiction; Service; Waivers
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5 | |
| Section 5.13. |
No
Third-Party Beneficiaries
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6 | |
| Section 5.14. |
Titles
and Headings
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6 | |
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This
Intercorporate Services Agreement (“Agreement”) is entered into
effective as of January 1, 2008 (the “Effective Date”), between
Contran Corporation, a Delaware corporation (“Contran”), and Titanium
Metals Corporation, Inc., a Delaware corporation.
Recitals
A. TIMET
is an indirectly held subsidiaries of Contran.
B. Titanium
Metals Corporation and each of its wholly-owned subsidiaries (collectively,
“TIMET”) 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 TIMET’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 TIMET, 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,
Tremont LLC, a Delaware limited liability company, and TIMET.
ARTICLE II.
RETENTION
OF CONTRAN
Section 2.1. Performance of
Services.
(a) TIMET
hereby engages and retains Contran to perform the Services and Contran hereby
accepts and agrees to provide such Services to TIMET 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 TIMET, and Contran shall not have any power to act independently on behalf of
TIMET other than as specifically authorized under this Agreement or from time to
time by TIMET. Contran shall provide Services in connection with
routine functions related to the ongoing ordinary course of TIMET’s
business. The Services rendered in connection with the conduct of
TIMET’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 TIMET in their
roles as members of TIMET’s board of directors or any other activity related to
such board of directors.
Section 2.3. Outside
Services. TIMET 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 TIMET 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) TIMET
assumes all liability for, and agrees to defend, indemnify and hold Contran
harmless from and against all No Liability Claims. TIMET 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. TIMET shall
promptly advance expenses as incurred by Contran, its directors, officers,
employees, stockholders or agents in connection with TIMET’s obligations under
this Section.
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ARTICLE III.
COMPENSATION
Section 3.1. Compensation for
Services.
(a) Contran
and TIMET shall agree on the aggregate annual amount that TIMET shall pay
Contran for the Services for a particular year.
(b) TIMET
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 TIMET, as applicable, shall promptly make appropriate payments to the other
party to reflect such change.
(d) All
charges from Contran to TIMET 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 TIMET for the
Services, TIMET 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. TIMET 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
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General
Counsel
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
If to TIMET: Titanium
Metals Corporation
Three
Lincoln Centre
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General
Counsel
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Section 5.3. Term;
Renewal. The initial term
of this Agreement shall commence as of the Effective Date and end on
December 31, 2008, 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, TIMET.
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
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(b)
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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 5.6. 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 or 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.
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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
Titanium
Metals Corporation
By: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Executive Vice President
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