EXHIBIT 10.14
INTERCORPORATE SERVICES AGREEMENT
AMONG
CONTRAN CORPORATION,
TREMONT LLC
AND
TITANIUM METALS CORPORATION
Dated as of January 1, 2004
TABLE OF CONTENTS
Page
ARTICLE I. AMENDS AND SUPERSEDES PRIOR AGREEMENT............................2
ARTICLE II. RETENTION OF CONTRAN.............................................2
Section 2.1. Performance of Contran 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. RETENTION OF TIMET.............................................. 3
Section 3.1. TIMET Services.........................................3
Section 3.2. TIMET Occupancy and Related Office Services............4
Section 3.3. Outside Services.......................................4
Section 3.4. Disclaimer, Limited Liability; Indemnification.........4
ARTICLE IV. COMPENSATION.....................................................5
Section 4.1. Compensation for Services..............................5
Section 4.2. Out-of-Pocket Costs....................................5
ARTICLE V. CONFIDENTIALITY..................................................5
Section 5.1. Confidentiality........................................5
ARTICLE VI. MISCELLANEOUS....................................................6
Section 6.1. Maintenance and Inspection of Records..................6
Section 6.2. Notices................................................6
Section 6.3. Term; Renewal..........................................7
Section 6.4. Independent Contractor.................................7
Section 6.5. Force Majeure..........................................7
Section 6.6. Entire Agreement.......................................7
Section 6.7. Amendments.............................................7
Section 6.8. Severability...........................................7
Section 6.9. Counterparts...........................................8
Section 6.10. Successors and Assigns.................................8
Section 6.11. Governing Law..........................................8
Section 6.12. Submission to Jurisdiction; Service; Waivers...........8
Section 6.13. No Third-Party Beneficiaries...........................8
Section 6.14. Titles and Headings....................................8
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INTERCORPORATE SERVICES AGREEMENT
This Intercorporate Services Agreement ("Agreement") is entered into
effective as of January 1, 2004 (the "Effective Date"), among Contran
Corporation, a Delaware corporation ("Contran"), Tremont LLC, a Delaware limited
liability company ("Tremont"), and Titanium Metals Corporation, a Delaware
corporation ("TIMET")
Recitals
A. TIMET and Tremont are indirectly held subsidiaries of Contran.
B. TIMET has and will have the need for executive, management, financial,
audit, accounting, tax, legal, insurance, risk management, treasury, technical,
consulting, administrative and other services as required from time to time in
the ordinary course of TIMET's business (collectively, the "Contran Services"),
but has determined that it is not cost effective to obtain and separately
maintain the infrastructure associated with the Contran Services, particularly
the costs associated with attracting and maintaining on its payroll on a full
time basis a full complement of skilled employees.
C. Tremont has and will have the need for management, financial, audit,
accounting, tax, human resources, legal, technical, consulting, administrative,
real property and other services as required from time to time in the ordinary
course of Tremont's business (collectively, the "TIMET Services"), but has
determined that it is not cost effective to obtain and separately maintain the
infrastructure associated with the TIMET Services, particularly the costs
associated with attracting and maintaining on its payroll on a full time basis a
full complement of skilled employees.
D. Contran also has and will have the need for the use of certain occupancy
and related office services at TIMET's corporate offices, which services shall
include, without limitation, mail, telecommunication, copying and other
reasonable office services related to such occupancy (the "TIMET Occupancy and
Related Office Services" and collectively with the TIMET Services, the "Combined
TIMET Services").
E. Contran is able and willing to provide the Contran Services to TIMET,
and TIMET desires to engage Contran as an independent contractor to provide the
Contran Services in accordance with the terms set forth in this Agreement.
F. TIMET is able and willing to provide the TIMET Services to Tremont, and
Tremont desires to engage TIMET as an independent contractor to provide the
TIMET Services in accordance with the terms set forth in this Agreement.
G. TIMET is able and willing to provide the TIMET Occupancy and Related
Office Services to Contran 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 AGREEMENTS
This Agreement amends and supersedes in its entirety that certain
Intercorporate Services Agreement effective as of January 1, 2003 by and between
Contran and TIMET and that certain Intercorporate Services Agreement effective
as of January 1, 2003 by and between Tremont and TIMET.
ARTICLE II.
RETENTION OF CONTRAN
Section 2.1. Contran Services.
(a) TIMET hereby engages and retains Contran to perform the Contran
Services and Contran hereby accepts and agrees to provide such Contran
Services to TIMET upon the terms and conditions set forth in this
Agreement. All Contran 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 Contran Services in connection with routine
functions related to the ongoing ordinary course of TIMET's business. The
Contran 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 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 Contran Services and the individuals who will render such
Contran Services.
(c) Contran will use reasonable efforts to make the Contran 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
Contran Services.
(e) Nothing herein shall be deemed to restrict any 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 Contran 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 within the scope of the Contran Services
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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 Contran Services or the quality or results of the Contran
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 Contran 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, "Contran No Liability Claims").
(c) TIMET assumes all liability for, and agrees to defend, indemnify
and hold Contran harmless from and against all Contran 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, Contran 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.
ARTICLE III.
RETENTION OF TIMET
Section 3.1. TIMET Services.
(a) Tremont hereby engages and retains TIMET to perform the TIMET
Services and TIMET hereby accepts and agrees to provide such TIMET Services
to Tremont upon the terms and conditions set forth in this Agreement. All
TIMET Services to be provided by TIMET hereunder shall be performed at the
request and under the direction of Tremont, and TIMET shall not have any
power to act independently on behalf of Tremont other than as specifically
authorized under this Agreement or from time to time by Tremont. TIMET
shall provide TIMET Services in connection with routine functions related
to the ongoing ordinary course of Tremont's business. The TIMET Services
rendered in connection with the conduct of Tremont'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 adjustments may be required to
the terms of this Agreement in the event of such major corporate
acquisitions, divestitures or special projects.
(b) TIMET shall determine the corporate facilities to be used in
rendering the TIMET Services and the individuals who will render such TIMET
Services.
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(c) TIMET will use reasonable efforts to make the TIMET 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 TIMET who perform similar services
for TIMET or for other affiliates of TIMET, or both, will perform the TIMET
Services.
(e) Nothing herein shall be deemed to restrict any 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 3.2. TIMET Occupancy and Related Office Services. Contran hereby
engages and retains TIMET to provide the TIMET Occupancy and Related Office
Services.
Section 3.3. Outside Services. Tremont will continue to bear all other
costs required for outside services within the scope of the TIMET Services
including, but not limited to, the outside services of attorneys, auditors,
trustees, consultants, transfer agents and registrars, and it is expressly
understood that TIMET assumes no liability for any expenses or services other
than those stated in this Article.
Section 3.4. Disclaimer, Limited Liability; Indemnification.
(a) Except as expressly provided elsewhere in this Agreement, TIMET
makes no express or implied representations, warranties or guarantees
relating to the Combined TIMET Services or the quality or results of the
Combined TIMET Services to be performed under this Agreement.
(b) TIMET, its directors, officers, employees, stockholders or agents
shall not be liable to Contran, Tremont 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 TIMET Services, other than those arising
from or in connection with the gross negligence or willful misconduct of
TIMET or its directors, officers, employees, stockholders or agents
(collectively, "TIMET No Liability Claims").
(c) Contran, its directors, officers, employees, stockholders or
agents shall not be liable to Tremont 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 TIMET Services (collectively, with the TIMET
No Liability Claims, the "Contran and TIMET No Liability Claims").
(d) Tremont assumes all liability for, and agrees to defend, indemnify
and hold (i) TIMET harmless from and against all TIMET No Liability Claims,
and (ii) Contran harmless from and against all Contran and TIMET No
Liability Claims. Tremont assumes all liability for, and agrees to defend,
indemnify and hold TIMET's directors, officers, employees, stockholders or
agents harmless from, TIMET No Liability Claims to the same extent that
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TIMET could assume such liability for, or defend, indemnify and hold
harmless, such entity or person. Tremont assumes all liability for, and
agrees to defend, indemnify and hold Contran's directors, officers,
employees, stockholders or agents harmless from, Contran and TIMET No
Liability Claims to the same extent that Contran could assume such
liability for, or defend, indemnify and hold harmless, such entity or
person. Tremont shall promptly advance expenses as incurred by TIMET or
Contran, or either of their directors, officers, employees, stockholders or
agents, in connection with Tremont's obligations under this Section.
ARTICLE IV.
COMPENSATION
Section 4.1. Compensation for Services.
(a) Contran and TIMET shall agree on the aggregate annual amount for a
particular year that (i) TIMET shall owe Contran for the Contran Services
(the "Contran Services Annual Amount") and (ii) Contran shall owe TIMET for
the TIMET Occupancy and Related Office Services (the "TIMET Occupancy and
Related Office Services Annual Amount").
(b) Tremont and TIMET shall agree on an annual amount for a particular
year that Tremont shall owe TIMET for the TIMET Services (the "TIMET
Services Annual Amount," and collectively with the TIMET Occupancy and
Related Office Services Annual Amount, the "Combined TIMET Services Annual
Amount").
(c) TIMET shall pay to Contran in advance quarterly around the first
business day of each quarter one fourth of the result of the Contran
Services Annual Amount less the Combined TIMET Services Annual Amount.
(d) Tremont shall pay to Contran in advance quarterly around the first
business day of each quarter one fourth of the TIMET Services Annual
Amount.
(e) From time to time upon a change to the annual amounts for a
particular year, the parties, as applicable, shall promptly make
appropriate payments to reflect such change.
(f) All charges under this Agreement are intended to be equal to the
actual cost of such charges without premium or ▇▇▇▇-up.
Section 4.2. Out-of-Pocket Costs. In addition to the fees paid for services
under this Agreement, each party will promptly pay to the appropriate other
party the amount of out-of-pocket costs incurred by the other party in rendering
such services.
ARTICLE V.
CONFIDENTIALITY
Section 5.1. 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
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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 (or parties) so that the other party
(or parties) may seek a protective order or other remedy or waive such party's
(or parties') 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 VI.
MISCELLANEOUS
Section 6.1. Maintenance and Inspection of Records. Each party shall keep
accurate books, accounts and records regarding services it provides under this
Agreement as may be reasonably necessary for purposes of this Agreement. The
recipient of the services under this Agreement shall be permitted to inspect the
books, accounts and records of the provider of such services at any reasonable
time.
Section 6.2. 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 Tremont: Tremont LLC
Three Lincoln Centre
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
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If to TIMET: Titanium Metals Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Section 6.3. 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. Any party may terminate this Agreement as to such party's rights
and obligations by giving written notice of termination to the other parties 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,
either of the non-defaulting parties may terminate this Agreement as to the
defaulting party 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 others of all amounts payable
hereunder shall be made pursuant to the terms hereof within thirty (30) days
following such termination.
Section 6.4. Independent Contractor. Each party shall be an independent
contractor and not an employee of, or partner or joint venturer with, any other
party to this Agreement.
Section 6.5. Force Majeure. No party shall be in default of this Agreement
or liable to the other parties 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 appropriate
party in time to perform its obligations by such dates.
Section 6.6. Entire Agreement. This Agreement constitutes the entire
understanding among 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 6.7. Amendments. No amendments, waivers or modifications hereof
shall be made or deemed to have been made unless in writing, executed by the
party or parties to be bound thereby.
Section 6.8. Severability. If any provision in this Agreement or the
application of such provision to any person or circumstance shall be invalid,
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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 6.9. 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 6.10. 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 parties 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 6.11. 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 6.12. 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 6.2.
Section 6.13. No Third-Party. 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 6.14. 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.
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Executed as of the Effective Date.
CONTRAN CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, Vice President
TREMONT LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
TITANIUM METALS CORPORATION
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board,
President and Chief Executive Officer
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