SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 (Fee Required) - For the fiscal year ended December 31, 1995
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 1-640
NL INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
New Jersey 13-5267260
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
16825 Northchase Drive, Suite 1200, Houston, Texas 77060
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 423-3300
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which registered
Common stock ($.125 par value) New York Stock Exchange
Pacific Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None.
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. X
As of February 29, 1996, 51,093,118 shares of common stock were outstanding.
The aggregate market value of the 14,571,028 shares of voting stock held by
nonaffiliates as of such date approximated $202 million.
Documents incorporated by reference:
The information required by Part III is incorporated by reference from the
registrant's definitive proxy statement to be filed with the Securities and
Exchange Commission pursuant to Regulation 14A not later than 120 days after the
end of the fiscal year covered by this report.
Forward-Looking Information.
The statements contained in this Annual Report on Form 10-K ("Annual
Report") which are not historical facts, including, but not limited to,
statements found (i) under the captions "Kronos-Industry", "Kronos-Products and
operations", "Kronos-Manufacturing process and raw materials", "Kronos-
Competition", "Rheox-Products and operations", "Rheox-Manufacturing process and
raw materials", "Patents and Trademarks", "Foreign Operations", and "Regulatory
and Environmental Matters", all contained in Item 1. Business, (ii) under the
captions "Lead pigment litigation" and "Environmental matters and litigation",
both contained in Item 3. Legal Proceedings, and (iii) under the captions
"Results of Operations" and "Liquidity and Capital Resources", both contained in
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations, are forward-looking statements that involve a number of risks and
uncertainties. The actual results of the future events described in such
forward-looking statements in this Annual Report could differ materially from
those stated in such forward-looking statements. Among the factors that could
cause actual results to differ materially are the risks and uncertainties
discussed in this Annual Report, including, without limitation, the portions
referenced above, and the uncertainties set forth from time to time in the
Company's other public reports and filings and public statements.
PART I
ITEM 1. BUSINESS
GENERAL
NL Industries, Inc., organized as a New Jersey corporation in 1891,
conducts its operations through its principal wholly-owned subsidiaries, Kronos,
Inc. and Rheox, Inc. Valhi, Inc. and Tremont Corporation, each affiliates of
Contran Corporation, hold 54% and 18%, respectively, of NL's outstanding common
stock. Contran holds, directly or through subsidiaries, approximately 91% of
Valhi's and 44% of Tremont's outstanding common stock. Substantially all of
Contran's outstanding voting stock is held by trusts established for the benefit
of the children and grandchildren of Harold C. Simmons of which Mr. Simmons is
the sole trustee. Mr. Simmons, the Chairman of the Board of NL and the Chairman
of the Board, President and Chief Executive Officer of each of Contran and Valhi
and a director of Tremont, may be deemed to control each of such companies. NL
and its consolidated subsidiaries are sometimes referred to herein collectively
as the "Company".
Kronos is the world's fourth largest producer of titanium dioxide pigments
("TiO2") with an estimated 11% share of the worldwide market. Approximately
one-half of Kronos' 1995 sales volume was in Europe, where Kronos is the second
largest producer of TiO2. In 1995, Kronos accounted for 87% of the Company's
sales and 81% of its operating income. Rheox is the world's largest producer of
rheological additives for solvent-based systems.
The Company's objective is to maximize total shareholder returns by (i)
focusing on continued cost control, (ii) deleveraging during the current upturn
of the TiO2 industry and (iii) investing in certain cost effective
debottlenecking projects to increase TiO2 production capacity.
KRONOS
INDUSTRY
Titanium dioxide pigments are chemical products used for imparting
whiteness, brightness and opacity to a wide range of products, including paints,
plastics, paper, fibers and ceramics. TiO2 is considered to be a "quality-of-
life" product with demand affected by the gross domestic product in various
regions of the world.
Demand, supply and pricing of TiO2 have historically been cyclical. The
last cyclical peak for TiO2 prices occurred in early 1990, with a cyclical low
in the third quarter of 1993. The Company believes the TiO2 industry continues
to have long-term potential. During the last TiO2 downturn, industry capacity
utilization dropped from almost 100% to approximately 85%. Industry utilization
increased to about 91% in 1995, and Kronos' selling prices in fourth quarter of
1995 were about 24% above the 1993 low point. Although TiO2 demand in Europe
and the U.S. is expected to be relatively flat during the first half of 1996,
the Company expects industry capacity utilization rates will increase over the
next several years. The Company's expectations as to the future prospects of
the TiO2 industry are based upon several factors beyond the Company's control,
principally continued worldwide growth of gross domestic product and the absence
of technological advancements in or modifications to TiO2 processes that would
result in material and unanticipated increases in production efficiencies. To
the extent that actual developments differ from the Company's expectations, the
Company's and the TiO2 industry's future performance could be unfavorably
affected.
Kronos has an estimated 18% share of European TiO2 sales and an estimated
9% share of U.S. TiO2 sales. Consumption per capita in the United States and
Western Europe far exceeds that in other areas of the world and these regions
are expected to continue to be the largest geographic markets for TiO2
consumption. If the economies in Eastern Europe, the Far East and China
continue to develop, a significant market for TiO2 could emerge in those
countries. Kronos believes that, due to its strong presence in Western Europe,
it is well positioned to participate in growth in the Eastern European market .
Geographic segment information is contained in Note 3 to the Consolidated
Financial Statements.
PRODUCTS AND OPERATIONS
The Company believes that there are no effective substitutes for TiO2.
However, extenders such as kaolin clays, calcium carbonate and polymeric
opacifiers are used in a number of Kronos' markets. Generally, extenders are
used to reduce to some extent the utilization of higher cost TiO2. The use of
extenders has not significantly affected TiO2 consumption over the past decade
because extenders generally have, to date, failed to match the performance
characteristics of TiO2. The Company believes that the use of extenders will
not materially alter the growth of the TiO2 business in the foreseeable future.
Kronos currently produces over 40 different TiO2 grades, sold under the
Kronos and Titanox trademarks, which provide a variety of performance properties
to meet customers' specific requirements. Kronos' major customers include
international paint, plastics and paper manufacturers.
Kronos is one of the world's leading producers and marketers of TiO2.
Kronos and its distributors and agents sell and provide technical services for
its products to over 5,000 customers with the majority of sales in Europe, the
United States and Canada. Kronos' international operations are conducted
through Kronos International, Inc., a German-based holding company formed in
1989 to manage and coordinate the Company's manufacturing operations in Germany,
Canada, Belgium and Norway, and its sales and marketing activities in over 100
countries worldwide. Kronos and its predecessors have produced and marketed
TiO2 in North America and Europe for over 70 years. As a result, Kronos
believes that it has developed considerable expertise and efficiency in the
manufacture, sale, shipment and service of its products in domestic and
international markets. By volume, one-half of Kronos' 1995 TiO2 sales were to
Europe, with 36% to North America and the balance to export markets.
Kronos is also engaged in the mining and sale of ilmenite ore (a raw
material used in the sulfate pigment production process), and the manufacture
and sale of iron-based water treatment chemicals (derived from co-products of
the pigment production processes). Water treatment chemicals are used as
treatment and conditioning agents for industrial effluents and municipal
wastewater and in the manufacture of iron pigments.
MANUFACTURING PROCESS AND RAW MATERIALS
TiO2 is manufactured by Kronos using both the chloride process and the
sulfate process. Approximately two-thirds of Kronos' current production
capacity is based on its chloride process which generates less waste than the
sulfate process. The waste acid resulting from the sulfate process is either
neutralized or reprocessed at Kronos or third party facilities. Although most
end-use applications can use pigments produced by either process, chloride
process pigments are generally preferred in certain coatings and plastics
applications, and sulfate process pigments are generally preferred for paper,
fibers and ceramics applications. Due to environmental factors and customer
considerations, the proportion of TiO2 industry sales represented by chloride
process pigments has increased relative to sulfate process pigments in the past
few years, and chloride process production facilities currently represent
approximately 55% of industry capacity.
Kronos produced a record 393,000 metric tons of TiO2 in 1995, compared to
357,000 metric tons in 1994 and 352,000 metric tons in 1993. Kronos believes
its annual attainable production capacity is approximately 390,000 metric tons,
including its one-half interest in the joint venture-owned Louisiana plant (see
"TiO2 manufacturing joint venture"). Following the completion of the $25
million debottlenecking expansion of its Leverkusen, Germany chloride process
plant in 1997, the Company expects its worldwide annual attainable production
capacity to increase to approximately 400,000 metric tons.
The primary raw materials used in the TiO2 chloride production process are
chlorine, coke and titanium-containing feedstock derived from beach sand
ilmenite and natural rutile ore. Chlorine and coke are available from a number
of suppliers. Titanium-containing feedstock suitable for use in the chloride
process is available from a limited number of suppliers around the world,
principally in Australia, Africa, India and the United States. Kronos purchases
slag refined from beach sand ilmenite from Richards Bay Iron and Titanium
(Proprietary) Limited (South Africa), approximately 50% of which is owned by
Q.I.T. Fer et Titane Inc. ("QIT"), an indirect subsidiary of RTZ Corp., under a
long-term supply contract that expires in 2000. Natural rutile ore, another
chloride feedstock, is purchased primarily from RGC Mineral Sands Limited
(Australia), under a long-term supply contract that expires in 2000. Raw
materials under these contracts are expected to meet Kronos' chloride feedstock
requirements over the next several years.
The primary raw materials used in the TiO2 sulfate production process are
sulfuric acid and titanium-containing feedstock derived primarily from rock and
beach sand ilmenite. Sulfuric acid is available from a number of suppliers.
Titanium-containing feedstock suitable for use in the sulfate process is
available from a limited number of suppliers around the world. Currently, the
principal active sources are located in Norway, Canada, Australia, India and
South Africa. As one of the few vertically-integrated producers of sulfate
process pigments, Kronos operates a rock ilmenite mine near Hauge i Dalane,
Norway, which provided all of Kronos' feedstock for its European sulfate process
pigment plants in 1995. Kronos' mine is also a commercial source of rock
ilmenite for other sulfate process producers in Europe. Kronos also purchases
sulfate grade slag under contracts negotiated annually with QIT and Tinfos
Titanium and Iron K/S.
Kronos believes the availability of titanium-containing feedstock for both
the chloride and sulfate processes is adequate through the remainder of the
decade. Kronos does not anticipate experiencing any interruptions of its raw
material supplies because of its long-term supply contracts, although political
and economic instability in the countries from which the Company purchases its
raw material supplies could adversely affect the availability.
TIO2 MANUFACTURING JOINT VENTURE
In October 1993, Kronos formed a manufacturing joint venture with Tioxide
Group, Ltd., a wholly-owned subsidiary of Imperial Chemicals Industries PLC
("Tioxide"). The joint venture, which is equally owned by subsidiaries of
Kronos and Tioxide (the "Partners"), owns and operates the Louisiana chloride
process TiO2 plant formerly owned by Kronos. Production from the plant is
shared equally by Kronos and Tioxide pursuant to separate offtake agreements.
A supervisory committee, composed of four members, two of whom are
appointed by each Partner, directs the business and affairs of the joint
venture, including production and output decisions. Two general managers, one
appointed and compensated by each Partner, manage the day-to-day operations of
the joint venture acting under the direction of the supervisory committee.
The manufacturing joint venture is intended to be operated on a break-even
basis and, accordingly, Kronos' transfer price for its share of the TiO2
produced is equal to its share of the joint venture's production costs and
interest expense. Kronos' share of the production costs are reported as cost of
sales as the related TiO2 acquired from the joint venture is sold, and its share
of the joint venture's interest expense is reported as a component of interest
expense.
COMPETITION
The TiO2 industry is highly competitive. During the late 1980s worldwide
demand approximated available supply and the major producers, including Kronos,
were operating at or near available capacity and customers generally were served
on an allocation basis. During the early 1990s, supply exceeded demand,
primarily due to new chloride process capacity coming on-stream. Relative
supply/demand relationships, which had a favorable impact on industry-wide
prices during the late 1980s, had a negative impact during the subsequent
downturn. During 1994 and the first half of 1995, improved industry capacity
utilization resulted in increases in worldwide TiO2 prices. Average TiO2 prices
in the fourth quarter of 1995 were 14% higher than the fourth quarter of 1994,
and were about 17% lower than the previous peak.
Capacity additions that are the result of construction of grassroot plants
in the worldwide TiO2 market require significant capital expenditures and
substantial lead time (typically three to five years in the Company's
experience) for, among other things, planning, obtaining environmental approvals
and construction. No grassroot plants have been announced, but industry
capacity in the next few years can be expected to increase as Kronos and its
competitors complete debottlenecking projects at existing plants. Based on the
factors described under the caption "Kronos-Industry" above, the Company expects
that the average annual increase in industry capacity from announced
debottlenecking projects will be less than the average annual demand growth for
TiO2 during the next few years.
Kronos competes primarily on the basis of price, product quality and
technical service, and the availability of high performance pigment grades.
Although certain TiO2 grades are considered specialty pigments, the majority of
grades and substantially all of Kronos' production are considered commodity
pigments with price generally being the most significant competitive factor.
Kronos has an estimated worldwide TiO2 market share of 11%, and believes that it
is the leading marketer of TiO2 in a number of countries, including Germany and
Canada.
Kronos' principal competitors are E.I. du Pont de Nemours & Co. ("DuPont");
Imperial Chemical Industries PLC (Tioxide); Hanson PLC (SCM Chemicals); Kemira
Oy; Kerr-McGee Corporation; Ishihara Sangyo Kaisha, Ltd.; Bayer AG; and Thann et
Mulhouse. These eight competitors have estimated individual worldwide market
shares ranging from 4% to 21%, and an estimated aggregate 76% share. DuPont has
over one-half of total U.S. TiO2 production capacity and is Kronos' principal
North American competitor.
RHEOX
PRODUCTS AND OPERATIONS
Rheological additives control the flow and leveling characteristics for a
variety of products, including paints, inks, lubricants, sealants, adhesives and
cosmetics. Organoclay rheological additives are clays which have been
chemically reacted with organic chemicals and compounds. Rheox produces
rheological additives for both solvent-based and water-based systems. Rheox
believes it is the world's largest producer of rheological additives for
solvent-based systems and is also a supplier of rheological additives used in
water-based systems. Rheological additives for solvent-based systems accounted
for about 80% of Rheox's sales in 1995, with the remainder being principally
rheological additives for water-based systems. Rheox introduced a number of new
products during the past few years, the majority of which are for water-based
systems, which represent a larger portion of the market than solvent-based
systems. The Company believes water-based additives will account for an
increasing portion of its sales in the long term.
Sales of rheological additives generally follow overall economic growth in
Rheox's principal markets and are influenced by the volume of shipments of the
worldwide coatings industry. Since Rheox's rheological additives are used in
industrial coatings, plant and equipment spending has an influence on demand for
this product line.
MANUFACTURING PROCESS AND RAW MATERIALS
The primary raw materials utilized in the production of rheological
additives are bentonite clays, hectorite clays, quaternary amines, polyethylene
waxes and castor oil derivatives. Bentonite clays are currently purchased under
a three-year contract, renewable through 2004, with a subsidiary of Dresser
Industries, Inc. ("Dresser"), which has significant bentonite reserves in
Wyoming. This contract assures Rheox the right to purchase its anticipated
requirements of bentonite clays for the foreseeable future, and Dresser's
reserves are believed to be sufficient for such purpose. Hectorite clays are
mined from Company-owned reserves in Newberry Springs, California, which the
Company believes are adequate to supply its needs for the foreseeable future.
The Newberry Springs ore body contains the largest known commercial deposit of
hectorite clays in the world. Quaternary amines are purchased primarily from a
joint venture company 50%-owned by Rheox and are also generally available on the
open market from a number of suppliers. Castor oil-based rheological additives
are purchased from sources in the United States and abroad. Rheox has a supply
contract with a manufacturer of these products which may not be terminated
without 180 days notice by either party.
COMPETITION
Competition in the specialty chemicals industry is generally concentrated
in the areas of product uniqueness, quality and availability, technical service,
knowledge of end-use applications and price. Rheox's principal competitors for
rheological additives for solvent-based systems are Laporte PLC and Sud-Chemie
AG. Rheox's principal competitors for water-based systems are Rohm and Haas
Company, Hercules Incorporated, The Dow Chemical Company and Union Carbide
Corporation.
RESEARCH AND DEVELOPMENT
The Company's expenditures for research and development and technical
support programs have averaged approximately $10 million annually during the
past three years with Kronos accounting for approximately three-quarters of the
annual spending. Research and development activities related to TiO2 are
conducted principally at the Leverkusen, Germany facility. Such activities are
directed primarily toward improving both the chloride and sulfate production
processes, improving product quality and strengthening Kronos' competitive
position by developing new pigment applications. Activities relating to
rheological additives are conducted primarily in the United States and are
directed towards the development of new products for water-based systems,
environmental applications and new end-use applications for existing product
lines.
PATENTS AND TRADEMARKS
Patents held for products and production processes are believed to be
important to the Company and contribute to the continuing business activities of
Kronos and Rheox. The Company continually seeks patent protection for its
technical developments, principally in the United States, Canada and Europe, and
from time to time enters into licensing arrangements with third parties. In
connection with the formation of the manufacturing joint venture with Tioxide,
Kronos and certain of its subsidiaries exchanged proprietary chloride process
and product technologies with Tioxide and certain of its affiliates. Use by
each recipient of the other's technology in Europe is restricted until October
1996. The Company does not expect that the technology sharing arrangement with
Tioxide will materially impact the Company's competitive position within the
TiO2 industry. See "Kronos - TiO2 manufacturing joint venture."
The Company's major trademarks, including Kronos, Titanox and Rheox, are
protected by registration in the United States and elsewhere with respect to
those products it manufactures and sells.
FOREIGN OPERATIONS
The Company's chemical businesses have operated in international markets
since the 1920s. Most of Kronos' current production capacity is located in
Europe and Canada, and approximately one-third of Rheox's sales in each of the
past three years have been from European production. Approximately three-
quarters of the Company's 1995 consolidated sales were to non-U.S. customers,
including 12% to customers in areas other than Europe and Canada. Foreign
operations are subject to, among other things, currency exchange rate
fluctuations and the Company's results of operations have in the past been both
favorably and unfavorably affected by fluctuations in currency exchange rates.
Effects of fluctuations in currency exchange rates on the Company's results of
operations are discussed in Item 7 - "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
Political and economic uncertainties in certain of the countries in which
the Company operates may expose it to risk of loss. The Company does not
believe that there is currently any likelihood of material loss through
political or economic instability, seizure, nationalization or similar event.
The Company cannot predict, however, whether events of this type in the future
could have a material effect on its operations. The Company's manufacturing and
mining operations are also subject to extensive and diverse environmental
regulation in each of the foreign countries in which they operate. See
"Regulatory and Environmental Matters."
CUSTOMER BASE AND SEASONALITY
The Company believes that neither its aggregate sales nor those of any of
its principal product groups are concentrated in or materially dependent upon
any single customer or small group of customers. Neither the Company's business
as a whole nor that of any of its principal product groups is seasonal to any
significant extent. Due in part to the increase in paint production in the
spring to meet the spring and summer painting season demand, TiO2 sales are
generally higher in the second and third calendar quarters than in the first and
fourth calendar quarters. Sales of rheological additives are influenced by the
worldwide industrial protective coatings industry, where second calendar quarter
sales are generally the strongest.
EMPLOYEES
As of December 31, 1995, the Company employed approximately 3,200 persons,
excluding the joint venture employees, with approximately 400 employees in the
United States and approximately 2,800 at sites outside the United States.
Hourly employees in production facilities worldwide, including the TiO2 joint
venture, are represented by a variety of labor unions, with labor agreements
having various expiration dates. The Company believes its labor relations are
good.
REGULATORY AND ENVIRONMENTAL MATTERS
Certain of the Company's businesses are and have been engaged in the
handling, manufacture or use of substances or compounds that may be considered
toxic or hazardous within the meaning of applicable environmental laws. As with
other companies engaged in similar businesses, certain past and current
operations and products of the Company have the potential to cause environmental
or other damage. The Company has implemented and continues to implement various
policies and programs in an effort to minimize these risks. The policy of the
Company is to achieve compliance with applicable environmental laws and
regulations at all its facilities and to strive to improve its environmental
performance. It is possible that future developments, such as stricter
requirements of environmental laws and enforcement policies thereunder, could
adversely affect the Company's production, handling, use, storage,
transportation, sale or disposal of such substances.
The Company's U.S. manufacturing operations are governed by federal
environmental and worker health and safety laws and regulations, principally the
Resource Conservation and Recovery Act, the Occupational Safety and Health Act,
the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Toxic
Substances Control Act and the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act ("CERCLA"), as well as the state counterparts of these
statutes. The Company believes that all of its U.S. plants and the Louisiana
plant owned and operated by the joint venture are in substantial compliance with
applicable requirements of these laws or compliance orders issued thereunder.
From time to time, the Company's facilities may be subject to environmental
regulatory enforcement under such statutes. Resolution of such matters typically
involves the establishment of compliance programs. Occasionally, resolution may
result in the payment of penalties, but to date such penalties have not involved
amounts having a material adverse effect on the Company's consolidated financial
position, results of operations or liquidity.
The Company's European and Canadian production facilities operate in an
environmental regulatory framework in which governmental authorities typically
are granted broad discretionary powers which allow them to issue operating
permits required for the plants to operate. The Company believes that all its
plants are in substantial compliance with applicable environmental laws.
While the laws regulating operations of industrial facilities in Europe
vary from country to country, a common regulatory denominator is provided by the
European Union (the "EU"). Germany, Belgium and the United Kingdom, each
members of the EU, follow the initiatives of the EU. Norway, although not a
member, generally patterns its environmental regulatory actions after the EU.
The Company believes that Kronos is in substantial compliance with agreements
reached with European environmental authorities and with an EU directive to
control the effluents produced by TiO2 production facilities. The Company also
believes that Rheox is in substantial compliance with the environmental
regulations in Germany and the United Kingdom.
In order to reduce sulfur dioxide emissions into the atmosphere consistent
with applicable environmental regulations, Kronos is currently installing off-
gas desulfurization systems at its Norwegian and German plants at an estimated
cost of $30 million and expects to complete the systems in 1996 and 1997,
respectively. The manufacturing joint venture has installed a $16 million off-
gas desulfurization system at the Louisiana plant which commenced operation in
1995. In addition, Kronos expects to complete an $11 million water treatment
chemical purification project at its Leverkusen, Germany facility in 1996.
The Quebec provincial government has environmental regulatory authority
over Kronos' Canadian chloride and sulfate process TiO2 production facilities in
Varennes, Quebec. The provincial government regulates discharges into the St.
Lawrence River. In May 1992, the Quebec provincial government extended Kronos'
right to discharge effluents from its Canadian sulfate process TiO2 plant into
the St. Lawrence River until June 1994. Kronos completed a waste acid
neutralization facility and discontinued discharging waste acid effluents into
the St. Lawrence River in June 1994. Notwithstanding the foregoing, in March
1993 Kronos' Canadian subsidiary and two of its directors were charged by the
Canadian federal government with five violations of the Canadian Fisheries Act
relating to discharges into the St. Lawrence River from the Varennes sulfate
process TiO2 production facility. The penalty for these violations, if proven,
could be up to Canadian $15 million. Additional charges, if brought, could
involve additional penalties. The Company believes that this charge is
inconsistent with the extension granted by provincial authorities, referred to
above, and is vigorously contesting the charge.
The Company's capital expenditures related to its ongoing environmental
protection and improvement programs are currently expected to be approximately
$23 million in 1996 and $5 million in 1997.
The Company has been named as a defendant, potentially responsible party
("PRP"), or both, pursuant to CERCLA and similar state laws in approximately 80
governmental enforcement and private actions associated with waste disposal
sites and facilities currently or previously owned, operated or used by the
Company, or its subsidiaries, or their predecessors, many of which are on the
U.S. Environmental Protection Agency's ("U.S. EPA") Superfund National
Priorities List or similar state lists. See Item 3 - "Legal Proceedings".
ITEM 2. PROPERTIES
Kronos currently operates four TiO2 facilities in Europe (Leverkusen and
Nordenham, Germany; Langerbrugge, Belgium; and Fredrikstad, Norway). In North
America, Kronos has a facility in Varennes, Quebec, Canada and, through the
manufacturing joint venture described above, a one-half interest in a plant in
Lake Charles, Louisiana. Certain of the Company's properties collateralize
long-term debt agreements. See Note 10 to the Consolidated Financial
Statements.
Kronos' principal German operating subsidiary leases the land under its
Leverkusen TiO2 production facility pursuant to a lease expiring in 2050. The
Leverkusen facility, with almost one-third of Kronos' current TiO2 production
capacity, is located within an extensive manufacturing complex owned by Bayer
AG, and Kronos is the only unrelated party so situated. Under a separate
supplies and services agreement expiring in 2011, Bayer provides some raw
materials, auxiliary and operating materials and utilities services necessary to
operate the Leverkusen facility. Both the lease and the supplies and services
agreement restrict Kronos' ability to transfer ownership or use of the
Leverkusen facility.
All of Kronos' principal production facilities described above are owned,
except for the land under the Leverkusen facility. Kronos has a governmental
concession with an unlimited term to operate its ilmenite mine in Norway.
Specialty chemicals are produced by Rheox at facilities in Charleston, West
Virginia; Newberry Springs, California; St. Louis, Missouri; Livingston,
Scotland and Nordenham, Germany. All of such production facilities are owned.
ITEM 3. LEGAL PROCEEDINGS
LEAD PIGMENT LITIGATION
The Company was formerly involved in the manufacture of lead pigments for
use in paint and lead-based paint. The Company has been named as a defendant or
third party defendant in various legal proceedings alleging that the Company and
other manufacturers are responsible for personal injury and property damage
allegedly associated with the use of lead pigments. The Company is vigorously
defending such litigation. Considering the Company's previous involvement in
the lead pigment and lead-based paint businesses, there can be no assurance that
additional litigation, similar to that described below, will not be filed. In
addition, various legislation and administrative regulations have, from time to
time, been enacted or proposed that seek to (a) impose various obligations on
present and former manufacturers of lead pigment and lead-based paint with
respect to asserted health concerns associated with the use of such products and
(b) effectively overturn court decisions in which the Company and other pigment
manufacturers have been successful. Examples of such proposed legislation
include bills proposed in Massachusetts and Ohio which would permit civil
liability for damages on the basis of market share and, in the case of
Massachusetts, extend certain statutes of limitations. No legislation or
regulations have been enacted to date which are expected to have a material
adverse effect on the Company's consolidated financial position, results of
operations or liquidity. The Company has not accrued any amounts for the
pending lead pigment litigation. Although no assurance can be given that the
Company will not incur future liability in respect of this litigation in view of
the inherent uncertainties involved in court and jury rulings in pending and
possible future cases, based on, among other things, the results of such
litigation to date, the Company believes that the pending lead pigment
litigation is without merit. Liability that may result, if any, cannot
reasonably be estimated.
In 1989 and 1990, the Housing Authority of New Orleans ("HANO") filed
third-party complaints for indemnity and/or contribution against the Company,
other alleged manufacturers of lead pigment (together with the Company, the
"pigment manufacturers") and the Lead Industries Association (the "LIA") in 14
actions commenced by residents of HANO units seeking compensatory and punitive
damages for injuries allegedly caused by lead pigment. The actions in the Civil
District Court for the Parish of Orleans, State of Louisiana were dismissed by
the district court in 1990. Subsequently, HANO agreed to consolidate all the
cases and appealed. In March 1992, the Louisiana Court of Appeals, Fourth
Circuit, dismissed HANO's appeal as untimely with respect to three of these
cases. With respect to the other cases included in the appeal, the court of
appeals reversed the lower court decision dismissing the cases. These cases
were remanded to the District Court for further proceedings. In November 1994,
the District Court granted defendants' motion for summary judgment in one of the
remaining cases and in June 1995 the District Court granted defendants' motion
for summary judgment in several of the remaining cases. After such grant, only
two cases remained pending.
In June 1989, a complaint was filed in the Supreme Court of the State of
New York, County of New York, against the pigment manufacturers and the LIA.
Plaintiffs seek damages, contribution and/or indemnity in an amount in excess of
$50 million for monitoring and abating alleged lead paint hazards in public and
private residential buildings, diagnosing and treating children allegedly
exposed to lead paint in city buildings, the costs of educating city residents
to the hazards of lead paint, and liability in personal injury actions against
the City and the Housing Authority based on alleged lead poisoning of city
residents (The City of New York, the New York City Housing Authority and the New
York City Health and Hospitals Corp. v. Lead Industries Association, Inc., et
al., No. 89-4617). In December 1991, the court granted the defendants' motion
to dismiss claims alleging negligence and strict liability and denied the
remainder of the motion. In January 1992, defendants appealed the denial. The
Company has answered the remaining portions of the complaint denying all
allegations of wrongdoing, and the case is in discovery. In May 1993, the
Appellate Division of the Supreme Court affirmed the denial of the motion to
dismiss plaintiffs' fraud, restitution, conspiracy and concert of action claims.
In August 1993, the defendants' motion for leave to appeal was denied. In May
1994, the trial court granted the defendants' motion to dismiss the plaintiffs'
restitution and indemnification claims, and plaintiffs have appealed.
Defendants' motion for summary judgment on the remaining fraud claim was denied
in August 1995; defendants have noticed an appeal. In December 1995, defendants
moved for summary judgment on the basis that the fraud claim was time-barred;
the motion is pending.
In March 1992, the Company was served with a complaint in Skipworth v.
Sherwin-Williams Co., et al. (No. 92-3069), Court of Common Pleas, Philadelphia
County. Plaintiffs are a minor and her legal guardians seeking damages from
lead paint and pigment producers, the LIA, the Philadelphia Housing Authority
and the owners of the plaintiffs' premises for bodily injuries allegedly
suffered by the minor from lead-based paint. Plaintiffs' counsel has asserted
that approximately 200 similar complaints would be served shortly, but no such
complaints have yet been served. In April 1994, the court granted defendants'
motion for summary judgment and the dismissal was affirmed by the Superior Court
in October 1995. Plaintiffs sought review in the Pennsylvania Supreme Court in
November 1995 and the request for review is pending.
In August 1992, the Company was served with an amended complaint in
Jackson, et al. v. The Glidden Co., et al., Court of Common Pleas, Cuyahoga
County, Cleveland, Ohio (Case No. 236835). Plaintiffs seek compensatory and
punitive damages for personal injury caused by the ingestion of lead, and an
order directing defendants to abate lead-based paint in buildings. Plaintiffs
purport to represent a class of similarly situated persons throughout the State
of Ohio. The amended complaint identifies 18 other defendants who allegedly
manufactured lead products or lead-based paint, and asserts causes of action
under theories of strict liability, negligence per se, negligence, breach of
express and implied warranty, fraud, nuisance, restitution, and negligent
infliction of emotional distress. The complaint asserts several theories of
liability including joint and several, market share, enterprise and alternative
liability. In October 1992, the Company and the other defendants moved to
dismiss the complaint with prejudice. In July 1993, the court dismissed the
complaint. In December 1994, the Ohio Court of Appeals reversed the trial court
dismissal and remanded the case to the trial court.
In November 1993, the Company was served with a complaint in Brenner, et
al. v. American Cyanamid, et al., (No. 12596-93) Supreme Court, State of New
York, Erie County alleging injuries to two children purportedly caused by lead
pigment. The complaint seeks $24 million in compensatory and $10 million in
punitive damages for alleged negligent failure to warn, strict products
liability, fraud and misrepresentation, concert of action, civil conspiracy,
enterprise liability, market share liability, and alternative liability. In
January 1994, the Company answered the complaint, denying liability. Discovery
is proceeding.
In January 1995, the Company was served with complaints in Wright (Alvin)
and Wright (Allen) v. Lead Industries, et. al., (Nos. 94-363042 and 363043),
Circuit Court, Baltimore City, Maryland. Plaintiffs are two brothers (one
deceased) who allege injuries due to exposure to lead pigment. The complaints,
as amended in April 1995, seek more than $100 million in compensatory and
punitive damages for alleged strict liability, negligence, conspiracy, fraud and
unfair and deceptive trade practices claims. In July 1995, the trial court
granted, in part, the defendants' motion to dismiss, and dismissed the
plaintiffs' fraud and unfair and deceptive trade practices claims. A trial date
has been set in these consolidated cases for October 1996, and discovery is
proceeding. In February 1996, the Company filed a motion for summary judgement,
which is pending.
In November 1995, the Company was served with the complaint in Jefferson v.
Lead Industry Association, et. al. (No. 95-2835), filed in the U.S. District
Court for the Eastern District of Louisiana. The complaint asserts claims
against the LIA and the lead pigment defendants on behalf of a putative class of
allegedly injured children in Louisiana. The complaint purports to allege
claims for strict liability, negligence, failure to warn, breach of alleged
warranties, fraud and misrepresentation, and conspiracy, and seeks actual and
punitive damages. The complaint asserts several theories of liability,
including joint and several and market share liability. The Company moved to
dismiss the complaint in February 1996.
In January 1996, the Company was served with a complaint on behalf of
individual intervenors in German, et. al. v. Federal Home Loan Mortgage Corp.,
et. al., (U.S. Dist. Court, Southern District of New York, Civil Action No. 93
Civ. 6941 (RWS)). This class action lawsuit had originally been brought against
the City of New York and other landlord defendants. The intervenors' complaint
alleges claims against the Company and other former manufacturers of lead
pigment for medical monitoring, property abatement, and other injunctive relief,
based on various causes of action, including negligent product design, negligent
failure to warn, strict products liability, fraud and misrepresentation, concert
of action, civil conspiracy, enterprise liability, market share liability,
breach of express and implied warranties, and nuisance. The intervenors purport
to represent a class of children and pregnant women who reside in New York City.
The Company believes that the foregoing lead pigment actions are without
merit and intends to continue to deny all allegations of wrongdoing and
liability and to defend such actions vigorously.
The Company has filed actions seeking declaratory judgment and other relief
against various insurance carriers with respect to costs of defense and
indemnity coverage for certain of its environmental and lead pigment litigation.
NL Industries, Inc. v. Commercial Union Insurance Cos., et al., Nos. 90-2124,
- -2125 (HLS) (District Court of New Jersey). The action relating to lead pigment
litigation defense costs filed in May 1990 against Commercial Union Insurance
Company ("Commercial Union") seeks to recover defense costs incurred in the City
of New York lead pigment case and two other cases which have since been resolved
in the Company's favor. In July 1991, the court granted the Company's motion
for summary judgment and ordered Commercial Union to pay the Company's
reasonable defense costs for such cases. In June 1992, the Company filed an
amended complaint in the United States District Court for the District of New
Jersey against Commercial Union seeking to recover costs incurred in defending
four additional lead pigment cases which have since been resolved in the
Company's favor. In August 1993, the court granted the Company's motion for
summary judgment and ordered Commercial Union to pay the reasonable costs of
defending those cases. In July 1994, the court entered judgment on the order
requiring Commercial Union to pay previously-incurred Company costs in defending
those cases. In September 1995, the U.S. Court of Appeals for the Third Circuit
reversed and remanded for further consideration the decision by the trial court
that Commercial Union was obligated to pay the Company's reasonable defense
costs in certain of the lead pigment cases. The trial court had made its
decision applying New Jersey law; the appeals court concluded that New York and
not New Jersey law applied and remanded the case to the trial court for a
determination under New York law. Other than granting motions for summary
judgment brought by two excess liability insurance carriers, which contended
that their policies contained unique pollution exclusion language, and certain
summary judgment motions regarding policy periods, the court has not made any
final rulings on defense costs or indemnity coverage with respect to the
Company's pending environmental litigation. The Court has not made any final
ruling on indemnity coverage in the lead pigment litigation. No trial dates
have been set. Other than rulings to date, the issue of whether insurance
coverage for defense costs or indemnity or both will be found to exist depends
upon a variety of factors, and there can be no assurance that such insurance
coverage will exist in other cases. The Company has not considered any
potential insurance recoveries for lead pigment or environmental litigation in
determining related accruals.
ENVIRONMENTAL MATTERS AND LITIGATION
The Company has been named as a defendant, PRP, or both, pursuant to CERCLA
and similar state laws in approximately 80 governmental and private actions
associated with waste disposal sites and facilities currently or previously
owned, operated or used by the Company, or its subsidiaries, or their
predecessors, many of which are on the U.S. EPA's Superfund National Priorities
List or similar state lists. These proceedings seek cleanup costs, damages for
personal injury or property damage, or both. Certain of these proceedings
involve claims for substantial amounts. Although the Company may be jointly and
severally liable for such costs, in most cases it is only one of a number of
PRPs who are also jointly and severally liable. In addition to the matters
noted above, certain current and former facilities of the Company, including
several divested secondary lead smelter and former mining locations, are the
subject of environmental investigations or litigation arising out of industrial
waste disposal practices and mining activities.
The extent of CERCLA liability cannot be determined until the Remedial
Investigation and Feasibility Study ("RIFS") is complete, the U.S. EPA issues a
record of decision and costs are allocated among PRPs. The extent of liability
under analogous state cleanup statutes and for common law equivalents are
subject to similar uncertainties. The Company believes it has provided adequate
accruals for reasonably estimable costs for CERCLA matters and other
environmental liabilities. At December 31, 1995, the Company had accrued $100
million with respect to those environmental matters which are reasonably
estimable. The Company determines the amount of accrual on a quarterly basis by
analyzing and estimating the range of possible costs to the Company. Such costs
include, among other things, remedial investigations, monitoring, studies,
clean-up, removal and remediation. It is not possible to estimate the range of
costs for certain sites. The Company has estimated that the upper end of the
range of reasonably possible costs to the Company for sites for which it is
possible to estimate costs is approximately $169 million. No assurance can be
given that actual costs will not exceed accrued amounts or the upper end of the
range for sites for which estimates have been made, and no assurance can be
given that costs will not be incurred with respect to sites as to which no
estimate presently can be made. The imposition of more stringent standards or
requirements under environmental laws or regulations, new developments or
changes respecting site cleanup costs or allocation of such costs among PRPs, or
a determination that the Company is potentially responsible for the release of
hazardous substances at other sites could result in expenditures in excess of
amounts currently estimated by the Company to be required for such matters.
Further, there can be no assurance that additional environmental matters will
not arise in the future. More detailed descriptions of certain legal
proceedings relating to environmental matters are set forth below.
The Company has been identified as a PRP by the U.S. EPA because of its
former ownership of three secondary lead smelters (battery recycling plants) in
Pedricktown, New Jersey; Granite City, Illinois; and Portland, Oregon. In all
three matters, the Company voluntarily entered into administrative consent
orders with the U.S. EPA requiring the performance of a RIFS, a study with the
objective of identifying the nature and extent of the hazards, if any, posed by
the sites, and selecting a remedial action, if necessary.
At Pedricktown, the U.S. EPA divided the site into two operable units.
Operable unit one covers contaminated ground water, surface water, soils and
stream sediments. The Company submitted the final RIFS for operable unit one to
the U.S. EPA in May 1993. In July 1994, the U.S. EPA issued the Record of
Decision for operable unit one. The U.S. EPA estimates the cost to complete
operable unit one is $18.7 million. The U.S. EPA recently issued a notice
requesting that the PRPs enter into an agreement to perform the remedial design
phase of operable unit one. In addition, the U.S. EPA incurred past costs in
the estimated amount of $4 million to $5 million. The U.S. EPA issued an order
with respect to operable unit two in March 1992 to the Company and 30 other PRPs
directing immediate removal activities including the cleanup of waste, surface
water and building surfaces. The Company has complied with the order, and the
work with respect to operable unit two is completed. The Company has paid
approximately 50% of operable unit two costs, or $2.5 million.
At Granite City, the RIFS is complete, and in 1990 the U.S. EPA selected a
remedy estimated to cost approximately $28 million. In July 1991, the United
States filed an action in the U.S. District Court for the Southern District of
Illinois against the Company and others (United States of America v. NL
Industries, Inc., et al., Civ. No. 91-CV 00578) with respect to the Granite City
smelter. The complaint seeks injunctive relief to compel the defendants to
comply with an administrative order issued pursuant to CERCLA, and fines and
treble damages for the alleged failure to comply with the order. The Company
and the other parties did not comply with the order believing that the remedy
selected by the U.S. EPA was invalid, arbitrary, capricious and not in
accordance with law. The complaint also seeks recovery of past costs of $.3
million and a declaration that the defendants are liable for future costs.
Although the action was filed against the Company and ten other defendants,
there are 330 other PRPs who have been notified by the U.S. EPA. Some of those
notified were also respondents to the administrative order. In February 1992,
the court entered a case management order directing that the remedy issues be
tried before the liability aspects are presented. In August 1994, when the U.S.
EPA reinitiated the residential yard soils remediation in Granite City after an
agreed-upon stay of the cleanup pending completion of a health study and
reopening of the administrative record, the PRPs and the City of Granite City
sought an injunction against the U.S. EPA to prevent further cleanup until after
the record was reopened for submittal of additional comments on the selected
remedy. In September 1995, the U.S. EPA released its decision selecting cleanup
remedies for the Granite City site. The cost of the remedies selected by the
U.S. EPA aggregates, in its estimation, $40.8 million to $67.8 million, although
its decision states that the higher amount is not considered to be
representative of expected costs. The Company believes that certain components
of the U.S. EPA's estimated costs may be erroneous and presently intends to
challenge portions of the U.S. EPA's selection of the remedy. There is no
allocation among the PRPs for these costs.
Having completed the RIFS at Portland, the Company conducted predesign
studies to explore the viability of the U.S. EPA's selected remedy pursuant to a
June 1989 consent decree captioned U.S. v. NL Industries, Inc., Civ. No. 89-408,
United States District Court for the District of Oregon. Subsequent to the
completion of the predesign studies, the U.S. EPA issued notices of potential
liability to approximately 20 PRPs, including the Company, directing them to
perform the remedy, which was initially estimated to cost approximately
$17 million, exclusive of administrative and overhead costs and any additional
costs, for the disposition of recycled materials from the site. In January
1992, the U.S. EPA issued unilateral administrative orders to the Company and
six other PRPs directing the performance of the remedy. The Company and the
other PRPs commenced performance of the remedy. Based upon site operations to
date, the remedy is not proceeding in accordance with engineering expectations
or cost projections; therefore, the Company and the other PRPs have met with the
U.S. EPA to discuss alternative remedies for the site. The U.S. EPA authorized
the Company and the other PRPs to cease performing most aspects of the selected
remedy. In September 1994, the Company and the other PRPs submitted a focused
feasibility study to the U.S. EPA, which proposes alternative remedies for the
site. In January 1996, the Company and the other PRP's submitted to U.S. EPA
the Amended Remedy Document ("ARD"), recommending selection of a new remedy for
the site. The U.S. EPA has indicated that it intends to notice the ARD for
public comment in 1996 and will thereafter select a new remedy for the site.
Pursuant to an interim allocation, the Company's share of remedial costs is
approximately 50%. In November 1991, Gould, Inc., the current owner of the
site, filed an action, Gould Inc. v. NL Industries, Inc., No. 91-1091, United
States District Court for the District of Oregon, against the Company for
damages for alleged fraud in the sale of the smelter, rescission of the sale,
past CERCLA response costs and a declaratory judgment allocating future response
costs and punitive damages. The court granted Gould's motion to amend the
complaint to add additional defendants (adjoining current and former landowners)
and third party defendants (generators). The amended complaint deletes the
fraud and punitive damages claims asserted against NL; thus, the pending action
is essentially one for reallocation of past and future cleanup costs. Discovery
is proceeding. A trial date has been tentatively set for September 1996.
The Company and other PRPs entered into an administrative consent order
with the U.S. EPA requiring the performance of a RIFS at two sites in Cherokee
County, Kansas, where the Company and others formerly mined lead and zinc. A
former subsidiary of the Company mined at the Baxter Springs subsite, where it
is the largest viable PRP. The final RIFS was submitted to the U.S. EPA in May
1993. In August 1994, the U.S. EPA issued its proposed plan for the cleanup of
the Baxter Springs and Treece sites in Cherokee County. The proposed remedy is
estimated by U.S. EPA to cost $6 million.
In January 1989, the State of Illinois brought an action against the
Company and several other subsequent owners and operators of the former lead
oxide plant in Chicago, Illinois (People of the State of Illinois v. NL
Industries, et al., No. 88-CH-11618, Circuit Court, Cook County). The complaint
seeks recovery of $2.3 million of cleanup costs expended by the Illinois
Environmental Protection Agency, plus penalties and treble damages. In October
1992, the Supreme Court of Illinois reversed the Appellate Division, which had
affirmed the trial court's earlier dismissal of the complaint, and remanded the
case for further proceedings. In December 1993, the trial court denied the
State's petition to reinstate the complaint, and dismissed the case with
prejudice. In February 1996, the appeals court affirmed the dismissal. The
time in which review by the state Supreme Court may be sought has not expired.
In 1980, the State of New York commenced litigation against the Company in
connection with the operation of a plant in Colonie, New York formerly owned by
the Company. Flacke v. NL Industries, Inc., No. 1842-80 ("Flacke I") and Flacke
v. Federal Insurance Company and NL Industries, Inc., No. 3131-92 ("Flacke II"),
New York Supreme Court, Albany County. The plant manufactured military and
civilian products from depleted uranium and was acquired from the Company by the
U.S. Department of Energy ("DOE") in 1984. Flacke I seeks penalties for alleged
violations of New York's Environmental Conservation Law, and of a consent order
entered into to resolve these alleged violations. Flacke II seeks forfeiture of
a $200,000 surety bond posted in connection with the consent order, plus
interest from February 1980. The Company denied liability in both actions. The
litigation had been inactive from 1984 until July 1993 when the State moved for
partial summary judgment for approximately $1.5 million on certain of its claims
in Flacke I and for summary judgment in Flacke II. In January 1994, the Company
cross-moved for summary judgment in Flacke I and Flacke II. All summary
judgment motions have been denied and both parties have appealed.
Residents in the vicinity of the Company's former Philadelphia lead
chemicals plant commenced a class action allegedly comprised of over 7,500
individuals seeking medical monitoring and damages allegedly caused by emissions
from the plant. Wagner, et al. v. Anzon, Inc. and NL Industries, Inc., No. 87-
4420, Court of Common Pleas, Philadelphia County. The complaint sought
compensatory and punitive damages from the Company and the current owner of the
plant, and alleged causes of action for, among other things, negligence, strict
liability, and nuisance. A class was certified to include persons who resided,
owned or rented property, or who work or have worked within up to approximately
three-quarters of a mile from the plant from 1960 through the present. The
Company answered the complaint, denying liability. In December 1994, the jury
returned a verdict in favor of the Company. Plaintiffs have appealed.
Residents also filed consolidated actions in the United States District Court
for the Eastern District of Pennsylvania, Shinozaki v. Anzon, Inc. and Wagner
and Antczak v. Anzon and NL Industries, Inc. Nos. 87-3441, 87-3502, 87-4137 and
87-5150. The consolidated action is a putative class action seeking CERCLA
response costs, including cleanup and medical monitoring, declaratory and
injunctive relief and civil penalties for alleged violations of the Resource
Conservation and Recovery Act ("RCRA"), and also asserting pendent common law
claims for strict liability, trespass, nuisance and punitive damages. The court
dismissed the common law claims without prejudice, dismissed two of the three
RCRA claims as against the Company with prejudice, and stayed the case pending
the outcome of the state court litigation.
In July 1991, a complaint was filed in the United States District Court for
the Central District of California, United States of America v. Peter Gull and
NL Industries, Inc., Civ. No. 91-4098, seeking recovery of $2 million in costs
incurred by the United States in response to the alleged release of hazardous
substances into the environment from a facility located in Norco, California,
treble damages and $1.75 million in penalties for the Company's alleged failure
to comply with the U.S. EPA's administrative order No. 88-13. The order, which
alleged that the Company arranged for the treatment or disposal of materials at
the Norco site, directed the immediate removal of hazardous substances from the
site. The Company carried out a portion of the remedy at the Norco site, but
did not complete the ordered activities because it believed they were in
conflict with California law. The Company answered the complaint denying
liability. The government claims it expended in excess of $2.7 million for this
matter. Trial was held in March and April 1993. In April 1994, the court
entered final judgment in this matter directing the Company to pay $6.3 million
plus interest. The court ruled that the Company was liable for approximately
$2.7 million in response costs plus approximately $3.6 million in penalties for
failure to comply with the administrative order. Both the Company and the
government have appealed. In August 1994, this matter was referred to
mediation, which is pending.
At a municipal and industrial waste disposal site in Batavia, New York, the
Company and six others have been identified as PRPs. The U.S. EPA has divided
the site into two operable units. Pursuant to an administrative consent order
entered into with the U.S. EPA, the Company conducted a RIFS for operable unit
one, the closure of the industrial waste disposal section of the landfill. The
Company's RIFS costs are approximately $2 million. In June 1995, the U.S. EPA
issued the record of decision for operable unit one, which is estimated by the
U.S. EPA to cost approximately $12.3 million. In September 1995, the U.S. EPA
and certain PRPs entered into an administrative order on consent for the
remedial design phase of the remedy for operable unit one. The Company and
other PRPs entered into an interim cost sharing arrangement for this phase of
work. With respect to the second operable unit, the extension of the municipal
water supply, the U.S. EPA estimated the costs at $1.2 million plus annual
operation and maintenance costs. The Company and the other PRPs are performing
the work comprising operable unit two. The U.S. EPA has also demanded
approximately $.9 million in past costs from the PRPs.
See Item 1 - "Business - Regulatory and Environmental Matters".
OTHER LITIGATION
Rhodes, et al. v. ACF Industries, Inc., et al. (Circuit Court of Putnam
County, West Virginia, No. 95-C-261). Twelve plaintiffs brought this action
against the Company and various other defendants in July 1995. Plaintiffs
allege that they were employed by demolition and disposal contractors, and claim
that as a result of the defendants' negligence they were exposed to asbestos
during demolition and disposal of materials from defendants' premises in West
Virginia. Plaintiffs allege personal injuries and seek compensatory damages
totaling $18.5 million and punitive damages totaling $55.5 million. The Company
has filed an answer denying plaintiffs' allegations. Discovery is proceeding.
The Company has been named as a defendant in various lawsuits alleging
personal injuries as a result of exposure to asbestos in connection with
formerly-owned operations. Various of these actions remain pending. One such
case, In re: Monongalia Mass II, (Circuit Court of Monongalia County, West
Virginia, Nos. 93-C-362, et al.), involving approximately 1,800 plaintiffs, is
scheduled to begin trial in August 1996. The Company is aware that claims on
behalf of approximately 400 additional plaintiffs have been filed, but the
Company has not yet been served with those claims. The Company intends to
defend these matters vigorously.
The Company is also involved in various other environmental, contractual,
product liability and other claims and disputes incidental to its present and
former businesses, and the disposition of past properties and former businesses.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the quarter
ended December 31, 1995.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
NL's common stock is listed and traded on the New York and Pacific Stock
Exchanges under the symbol "NL". As of February 29, 1996, there were
approximately 9,500 holders of record of NL common stock. The following table
sets forth the high and low sales prices for NL common stock on the New York
Stock Exchange ("NYSE") Composite Tape. On February 29, 1996, the closing price
of NL common stock according to the NYSE Composite Tape was $13 7/8.
<TABLE>
<CAPTION>
High Low
<S> <C> <C>
Year ended December 31, 1994:
First quarter $ 9-5/8 $ 4-3/8
Second quarter 9-1/2 6-1/8
Third quarter 11-7/8 8-3/8
Fourth quarter 13-1/4 9
Year ended December 31, 1995:
First quarter $13-1/2 $11-3/4
Second quarter 16-5/8 11-7/8
Third quarter 17-1/2 13-1/2
Fourth quarter 16-5/8 10-7/8
</TABLE>
The Company's Senior Notes generally limit the ability of the Company to
pay dividends to 50% of consolidated net income, as defined, subsequent to
October 1993. The Company did not pay a dividend in 1993, 1994 or 1995. At
December 31, 1995, $6 million was available for dividends. On February 15,
1996, the Company announced the resumption of a regular quarterly dividend by
declaring a $.10 per share cash dividend to be paid to shareholders of record on
March 1, 1996. The declaration and payment of future dividends and the amount
thereof will be dependent upon the Company's results of operations, financial
condition, contractual restrictions and other factors deemed relevant by the
Company's Board of Directors.
ITEM 6. SELECTED FINANCIAL DATA
The selected consolidated financial data set forth below should be read in
conjunction with the Consolidated Financial Statements and Notes thereto, and
Item 7 - "Management's Discussion and Analysis of Financial Condition and
Results of Operations."
<TABLE>
<CAPTION>
Years ended December 31,
1991 1992 1993 1994 1995
(In millions, except per share amounts)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales $ 840.3 $ 893.5 $ 805.3 $ 888.0 $1,023.9
Operating income 139.0 110.7 62.4 111.4 199.7
Income (loss) from continuing
operations (24.0) (44.6) (83.2) (24.0) 85.6
Net income (loss) (16.5) (76.4) (109.8) (24.0) 85.6
Per common share:
Income (loss) from
continuing operations $ (.40) $ (.88) $ (1.63) $ (.47) $ 1.66
Net income (loss) (.27) (1.50) (2.16) (.47) 1.66
Cash dividends $ .60 $ .35 $ - $ - $ -
BALANCE SHEET DATA
(AT YEAR-END):
Cash, cash equivalents and
current marketable
securities $ 353.3 $ 187.9 $ 147.6 $ 156.3 $ 141.3
Current assets 795.5 635.8 467.5 486.4 551.1
Total assets 1,831.0 1,472.1 1,206.5 1,162.4 1,271.7
Current liabilities 360.2 248.8 232.5 244.9 302.4
Long-term debt including
current maturities 1,288.9 1,035.3 870.9 789.6 783.7
Shareholders' deficit (58.3) (146.3) (264.8) (293.1) (209.4)
OTHER DATA:
Net debt (1) $ 936.0 $ 847.7 $ 723.2 $ 633.4 $ 681.6
EBITDA (2) 126.6 115.1 67.2 101.3 212.1
Interest expense, net (3) 59.9 104.3 95.1 78.9 75.4
Cash interest expense,
net (4) 53.9 98.0 86.8 60.8 59.7
Capital expenditures 195.1 85.2 48.0 36.9 64.2
TiO2 sales volumes
(in thousands metric tons) 303 336 346 376 366
Average TiO2 selling price
index (1983=100) 147 139 127 131 150
</TABLE>
(1) Net debt represents notes payable and long-term debt less cash, cash
equivalents and current marketable securities.
(2) EBITDA, as presented, represents operating income less corporate expense,
net, plus depreciation, depletion and amortization. EBITDA is presented as
a supplement to the Company's operating income and cash flow from
operations because the Company believes that certain parties find EBITDA a
useful tool for measuring the Company's performance and ability to service
debt. EBITDA is not a substitute for either operating income or cash flow
from operations.
(3) Interest expense, net represents interest expense less general corporate
interest and dividend income.
(4) Cash interest expense, net represents interest expense, net less non-cash
interest expense (deferred interest expense on the Senior Secured Discount
Notes and amortization of deferred financing costs).
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
GENERAL
The Company's operations are conducted in two business segments - TiO2
conducted by Kronos and specialty chemicals conducted by Rheox. As discussed
below, TiO2 selling prices increased during 1994 and the first nine months of
1995 after four consecutive years of a declining price trend. Kronos' operating
income and margins improved significantly during 1994 and 1995.
NET SALES AND OPERATING INCOME
<TABLE>
<CAPTION>
Years ended December 31, % Change
1993 1994 1995 1994-93 1995-94
(In millions)
<S> <C> <C> <C> <C> <C>
Net sales:
Kronos $697.0 $770.1 $ 894.1 +10% +16%
Rheox 108.3 117.9 129.8 +9% +10%
$805.3 $888.0 $1,023.9 +10% +15%
Operating income:
Kronos $ 36.1 $ 80.6 $ 161.2 +123% +100%
Rheox 26.3 30.8 38.5 +17% +25%
$ 62.4 $111.4 $ 199.7 +78% +79%
Percent change in TiO2:
Sales volume +9% -3%
Average selling prices
(in billing currencies) +3% +15%
</TABLE>
The improvement in Kronos' 1995 results was primarily due to higher average
TiO2 selling prices and higher TiO2 production volumes, partially offset by
lower TiO2 sales volumes. In billing currency terms, Kronos' 1995 average TiO2
selling prices were approximately 15% higher than in 1994 and were 3% higher in
1994 compared to 1993. However, the majority of the 1995 increase in average
selling prices occurred during the first half of the year and average TiO2
selling prices in the fourth quarter of 1995 were 1% lower than the third
quarter of 1995.
Sales volume of 366,000 metric tons of TiO2 in 1995 decreased 3% compared
to the record level of 1994, with declines in both Europe and North America, due
to softening demand in the second half of 1995 and customers building
inventories during 1994 and early 1995. Kronos increased its production to 94%
of its capacity in 1994 and to full capacity in 1995. Kronos has curtailed
production rates in early 1996 in response to soft demand and its high inventory
levels. Kronos anticipates TiO2 demand will remain soft during the first half
of 1996, although industry capacity utilization rates are expected to increase
over the next several years. Kronos' TiO2 sales volumes increased 9% in 1994
over 1993, with increases in all major regions. Approximately one-half of
Kronos' 1995 TiO2 sales, by volume, were attributable to markets in Europe with
approximately 36% attributable to North America and the balance to other
regions.
Demand, supply and pricing of TiO2 have historically been cyclical and the
last cyclical peak for TiO2 prices occurred in early 1990. Kronos believes that
its operating margins for 1996 could be lower than in 1995 due principally to
the net effect of higher sales volumes, offset by increased raw material costs,
lower production volumes and lower technology fee income.
Rheox's operating income improved in 1995 compared to 1994 due to higher
sales volumes and selling prices. Operating income increased during 1994 over
1993 due to higher sales volumes and lower operating costs.
The Company has substantial operations and assets located outside the
United States (principally Germany, Norway, Belgium and Canada). The U.S.
dollar value of the Company's foreign sales and operating costs are subject to
currency exchange rate fluctuations which may slightly impact reported earnings
and may effect the comparability of period to period operating results. A
significant amount of the Company's sales are denominated in currencies other
than the U.S. dollar (64% in 1995), principally major European currencies and
the Canadian dollar. Certain purchases of raw materials, primarily titanium-
containing feedstocks, are denominated in U.S. dollars, while labor and other
production costs are primarily denominated in local currencies. Fluctuations in
the value of the U.S. dollar relative to other currencies increased 1995 sales
by $54 million compared to 1994 and decreased 1994 sales by $2 million compared
to 1993.
GENERAL CORPORATE
The following table sets forth certain information regarding general
corporate income (expense).
<TABLE>
<CAPTION>
Years ended December 31, Change
1993 1994 1995 1994-93 1995-94
(In millions)
<S> <C> <C> <C> <C> <C>
Securities earnings $ 8.5 $ 3.9 $ 7.4 $(4.6) $ 3.5
Corporate expenses, net (41.5) (44.7) (26.6) (3.2) 18.1
Interest expense (99.1) (83.9) (81.6) 15.2 2.3
$(132.1) $(124.7) $(100.8) $ 7.4 $23.9
</TABLE>
Securities earnings fluctuate in part based upon the amount of funds
invested and yields thereon. Corporate expenses, net were significantly lower
in 1995 compared to 1994 due to lower provisions for environmental remediation
and litigation costs. Corporate expenses in 1994 were slightly higher than 1993
as a $20 million gain related to the settlement of a lawsuit was offset by
increases in provisions for environmental remediation and litigation costs.
INTEREST EXPENSE
Interest expense in 1994 and 1995 declined compared to the respective
prior-year periods due to lower levels of debt, principally Kronos' Deutsche
mark-denominated debt, and lower interest rates on such DM-denominated debt.
PROVISION FOR INCOME TAXES
The principal reasons for the difference between the U.S. federal statutory
income tax rates and the Company's effective income tax rates are explained in
Note 13 to the Consolidated Financial Statements. The Company's operations are
conducted on a worldwide basis and the geographic mix of income can
significantly impact the Company's effective income tax rate. In 1995, due to
the Company's return to profitability, the Company recognized approximately $10
million of U.S. deferred tax assets which the Company believes satisfy the
"more-likely-than-not" recognition criteria. During the fourth quarter of 1995,
the Company recorded deferred tax benefits of $6.6 million due to the reduction
in dividend withholding tax rates pursuant to ratification of the new
U.S./Canada income tax treaty. In 1993 and 1994, the geographic mix of income,
including losses in certain jurisdictions for which no current refund was
available and recognition of a deferred tax asset was not considered
appropriate, contributed to the Company's effective tax rate varying from a
normally-expected rate. The Company's deferred income tax status at December
31, 1995 is discussed in "Liquidity and Capital Resources".
Extraordinary item
See Note 16 to the Consolidated Financial Statements.
CHANGE IN ACCOUNTING PRINCIPLE
See Notes 2 and 19 to the Consolidated Financial Statements.
LIQUIDITY AND CAPITAL RESOURCES
The Company's consolidated cash flows provided by operating, investing and
financing activities for each of the past three years are presented below.
<TABLE>
<CAPTION>
Years ended December 31,
1993 1994 1995
(In millions)
<S> <C> <C> <C>
Net cash provided (used) by:
Operating activities $ (7.3) $ 181.7 $ 71.5
Investing activities 181.9 (32.8) (62.2)
Financing activities (155.3) (132.1) (3.3)
Net cash provided by operating, investing
and financing activities $ 19.3 $ 16.8 $ 6.0
</TABLE>
The TiO2 industry is cyclical, with the previous peak in selling
prices in early 1990 and the latest trough in the third quarter of 1993.
During the last TiO2 downturn, the Company's operations used significant
amounts of cash. Since the 1993 trough, the Company's cash provided by
operating activities substantially improved as the Company's operating
income improved. Changes in the Company's inventories, receivables and
payables (excluding the effect of currency translation) also contributed
to the cash provided by operations in 1993 and 1994; however, such changes
used cash in 1995 primarily due to increased inventory levels. Receipt of
the German tentative tax refund, discussed below, significantly increased
the Company's cash flow from operating activities during 1994. A $30
million technology exchange fee received from Tioxide in October 1993, which
is being recognized as a component of operating income over three years, also
favorably impacted cash flow from operating activities in 1993.
Cash provided (used) by investing activities includes capital expenditures
in each period, and in 1993 included $161 million net cash generated from the
formation of the manufacturing joint venture with Tioxide. Cash provided by
investing activities also included net sales of marketable securities of $68
million in 1993 primarily used to fund debt repayments. In 1994 and 1995, net
proceeds of $15 million and $26 million, respectively, from the sale of trading
securities are components of the cash provided from operations as a result of
the adoption of SFAS No. 115.
The Company's capital expenditures during the past three years include an
aggregate of $73 million ($26 million in 1995) for the Company's ongoing
environmental protection and compliance programs, including a Canadian waste
acid neutralization facility, a Norwegian onshore tailings disposal system and
off-gas desulfurization systems. The Company's estimated 1996 and 1997 capital
expenditures are $63 million and $56 million, respectively, and include $23
million and $5 million, respectively, in the area of environmental protection
and compliance primarily related to the off-gas desulfurization systems and
water treatment chemical purification project. The Company spent $9 million in
1995, and plans to spend an additional $11 million in 1996 and $5 million in
1997, in capital expenditures related to a debottlenecking project at its
Leverkusen, Germany chloride process TiO2 facility that is expected to increase
the Company's worldwide annual attainable production to approximately 400,000
metric tons in 1997. The capital expenditures of the manufacturing joint
venture are not included in the Company's capital expenditures.
Net repayments of indebtedness in 1995 included $30 million in payments on
the Rheox bank term loan, including $10 million of prepayments, and $15 million
in scheduled repayments on the joint venture term loan. In addition, the
Company borrowed $51 million under DM-denominated short-term credit facilities
of which $11 million was repaid. In 1994 the Company borrowed DM 75 million
($45 million when borrowed) under the DM credit facility. Repayments of
indebtedness in 1994 included DM 225 million ($140 million when paid) paid on
the DM credit facility, $15 million paid on the Rheox bank term loan and $15
million paid on the joint venture term loan. Net repayments of indebtedness in
1993 included payments on the DM credit facility of DM 552 million ($342 million
when paid), a $110 million net reduction in indebtedness related to the
Louisiana plant and $350 million proceeds from the Company's public offering of
debt.
At December 31, 1995, the Company had cash and cash equivalents aggregating
$141 million (25% held by non-U.S. subsidiaries) including restricted cash and
cash equivalents of $10 million. In addition, the Company's subsidiaries had $5
million and $191 million available for borrowing at December 31, 1995 under
existing U.S. and non-U.S. credit facilities, respectively, of which $87 million
of the non-U.S. amount is available only for (i) permanently reducing the DM
term loan or (ii) paying future German income tax assessments, as described
below. In January 1996, the Company borrowed DM 30 million under the revolving
credit portion of the DM credit facility.
Based upon the Company's expectations for the TiO2 industry and anticipated
demands on the Company's cash resources as discussed herein, the Company expects
to have sufficient liquidity to meet its obligations including operations,
capital expenditures and debt service. To the extent that actual developments
differ from Company's expectations, the Company's liquidity could be adversely
affected. On February 15, 1996, the Company announced the resumption of a
regular quarterly dividend by declaring a $.10 per share cash dividend to be
paid to shareholders of record on March 1, 1996.
Certain of the Company's income tax returns in various U.S. and non-U.S.
jurisdictions, including Germany, are being examined and tax authorities have
proposed or may propose tax deficiencies. During 1994, the German tax
authorities withdrew certain proposed tax deficiencies of DM 100 million and
remitted tax refunds aggregating DM 225 million ($136 million when received),
including interest, on a tentative basis while examination of the Company's
German income tax returns continued. The Company recently reached agreement in
principle with the German tax authorities regarding such examinations which will
resolve certain significant tax contingencies for years through 1990. The
Company expects to finalize assessments and pay tax deficiencies of
approximately DM 50 million ($35 million at December 31, 1995), including
interest, in settlement of these issues during the first half of 1996. The
Company considers the agreement in principle to be a favorable resolution of the
contingencies and the anticipated payment is within previously-accrued amounts
for such matters.
Certain other German tax contingencies remain outstanding and will continue
to be litigated. No assurances can be given that this litigation will be
resolved in the Company's favor in view of the inherent uncertainties involved
in court rulings. Although the Company believes that it will ultimately prevail
in the litigation, the Company has granted a DM 100 million ($70 million at
December 31, 1995) lien on its Nordenham, Germany TiO2 plant in favor of the
German tax authorities until the litigation is resolved. The Company believes
that it has adequately provided accruals for additional income taxes and related
interest expense which may ultimately result from all such examinations and
believes that the ultimate disposition of such examinations should not have a
material adverse effect on the Company's consolidated financial position,
results of operations or liquidity.
At December 31, 1995, the Company had net deferred tax liabilities of $157
million. The Company operates in numerous tax jurisdictions, in certain of
which it has temporary differences that net to deferred tax assets (before
valuation allowance). The Company has provided a deferred tax valuation
allowance of $196 million at December 31, 1995, principally related to the U.S.
and Germany, partially offsetting deferred tax assets which the Company believes
do not currently meet the "more-likely-than-not" recognition criteria.
In addition to the chemicals businesses conducted through Kronos and Rheox,
the Company also has certain interests and associated liabilities relating to
certain discontinued or divested businesses and other holdings of marketable
equity securities including securities issued by Valhi and other Contran
subsidiaries.
The Company has been named as a defendant, PRP, or both, in a number of
legal proceedings associated with environmental matters, including waste
disposal sites or facilities currently or formerly owned, operated or used by
the Company, many of which disposal sites or facilities are on the U.S. EPA's
Superfund National Priorities List or similar state lists. On a quarterly
basis, the Company evaluates the potential range of its liability at sites where
it has been named as a PRP or defendant. The Company believes it has provided
adequate accruals for reasonably estimable costs of such matters, but the
Company's ultimate liability may be affected by a number of factors, including
changes in remedial alternatives and costs and the allocation of such costs
among PRPs. The Company is also a defendant in a number of legal proceedings
seeking damages for personal injury and property damage arising out of the sale
of lead pigments and lead-based paints. The Company has not accrued any amounts
for the pending lead pigment litigation. Although no assurance can be given
that the Company will not incur future liability in respect of this litigation,
based on, among other things, the results of such litigation to date, the
Company believes that the pending lead pigment litigation is without merit.
Liability, that may result, if any, cannot reasonably be estimated. The Company
currently believes the disposition of all claims and disputes, individually or
in the aggregate, should not have a material adverse effect on the Company's
consolidated financial position, results of operations or liquidity. There can
be no assurance that additional matters of these types will not arise in the
future. See Item 3 - "Legal Proceedings" and Note 18 to the Consolidated
Financial Statements.
As discussed above, the Company has substantial operations located outside
the United States for which the functional currency is not the U.S. dollar. As
a result, the reported amount of the Company's assets and liabilities related to
its non-U.S. operations, and therefore the Company's consolidated net assets,
will fluctuate based upon changes in currency exchange rates. The carrying
value of the Company's net investment in its German operations is a net
liability due principally to its DM credit facility, while its net investment in
its other non-U.S. operations are net assets.
The Company periodically evaluates its liquidity requirements, alternative
uses of capital, capital needs and availability of resources in view of, among
other things, its debt service and capital expenditure requirements and
estimated future operating cash flows. As a result of this process, the Company
has in the past and may in the future seek to reduce, refinance or restructure
indebtedness, raise additional capital, modify its dividend policy, restructure
ownership interests, sell interests in subsidiaries or other assets, or take a
combination of such steps or other steps to manage its liquidity and capital
resources. In the normal course of its business, the Company may review
opportunities for the acquisition of businesses and assets in the chemicals
industry. In the event of any future acquisition, the Company may consider
using available cash, issuing equity securities or increasing its indebtedness
to the extent permitted by the agreements governing the Company's existing debt.
See Note 10 to the Consolidated Financial Statements.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by this Item is contained in a separate section of
this Annual Report. See "Index of Financial Statements and Schedules" on page
F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this Item is incorporated by reference to NL's
definitive proxy statement to be filed with the Securities and Exchange
Commission pursuant to Regulation 14A within 120 days after the end of the
fiscal year covered by this report (the "NL Proxy Statement").
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is incorporated by reference to the
NL Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item is incorporated by reference to the
NL Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is incorporated by reference to the
NL Proxy Statement. See also Note 17 to the Consolidated Financial Statements.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS SCHEDULES, AND REPORTS ON FORM 8-K
(a) and (d) Financial Statements and Schedules
The consolidated financial statements and schedules listed by
the Registrant on the accompanying Index of Financial
Statements and Schedules (see page F-1) are filed as part of
this Annual Report.
(b) Reports on Form 8-K
Reports on Form 8-K for the quarter ended December 31, 1995 and
thereafter through the date of this report.
October 19, 1995 - reported items 5 and 7.
January 25, 1996 - reported items 5 and 7.
February 15, 1996 - reported items 5 and 7.
(c) Exhibits
Included as exhibits are the items listed in the Exhibit
Index. NL will furnish a copy of any of the exhibits
listed below upon payment of $4.00 per exhibit to cover
the costs to NL of furnishing the exhibits. Instruments
defining the rights of holders of long-term debt issues
which do not exceed 10% of consolidated total assets
will be furnished to the Securities and Exchange Commission
upon request.
Item No. Exhibit Index
3.1 By-Laws, as amended on June 28, 1990 - incorporated by reference to
Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1990.
3.2 Certificate of Amended and Restated Certificate of Incorporation
dated June 28, 1990 - incorporated by reference to Exhibit 1 to the
Registrant's Proxy Statement on Schedule 14A for the annual meeting
held on June 28, 1990.
4.1 Registration Rights Agreement dated October 30, 1991, by and between
the Registrant and Tremont Corporation - incorporated by reference
to Exhibit 4.3 to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1991.
4.2 Indenture dated October 20, 1993 governing the Registrant's 11.75%
Senior Secured Notes due 2003, including form of Senior Note -
incorporated by reference to Exhibit 4.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1993.
4.3 Senior Mirror Notes dated October 20, 1993 - incorporated by
reference to Exhibit 4.3 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1993.
4.4 Senior Note Subsidiary Pledge Agreement dated October 20, 1993
between Registrant and Kronos, Inc. - incorporated by reference to
Exhibit 4.4 to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1993.
4.5 Third Party Pledge and Intercreditor Agreement dated October 20,
1993 between Registrant, Chase Manhattan Bank (National Association)
and Chemical Bank - incorporated by reference to Exhibit 4.5 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993.
4.6 Indenture dated October 20, 1993 governing the Registrant's 13%
Senior Secured Discount Notes due 2005, including form of Discount
Note - incorporated by reference to Exhibit 4.6 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1993.
4.7 Discount Mirror Notes dated October 20, 1993 - incorporated by
reference to Exhibit 4.8 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1993.
4.8 Discount Note Subsidiary Pledge Agreement dated October 20, 1993
between Registrant and Kronos, Inc. - incorporated by reference to
Exhibit 4.9 to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1993.
10.1 Amended and Restated Loan Agreement dated as of October 15, 1993
among Kronos International, Inc., the Banks set forth therein,
Hypobank International S.A., as Agent and Banque Paribas, as Co-
agent - incorporated by reference to Exhibit 10.17 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993.
10.2 Amended and Restated Liquidity Undertaking dated October 15, 1993 by
the Registrant, Kronos, Inc. and Kronos International, Inc. to
Hypobank International S.A., as agent, and the Banks set forth
therein - incorporated by reference to Exhibit 10.18 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993.
10.3 Credit Agreement dated as of March 20, 1991 between Rheox, Inc. and
Subsidiary Guarantors and The Chase Manhattan Bank (National
Association) and the Nippon Credit Bank, Ltd., as Co-agents -
incorporated by reference to Exhibit 10.4 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1990.
10.4 Amendments 1 and 2 dated May 1, 1991 and February 15, 1992,
respectively, to the Credit Agreement between Rheox, Inc. and
Subsidiary Guarantors and the Chase Manhattan Bank (National
Association) and the Nippon Credit Bank, Ltd. as Co-Agents-
incorporated by reference to Exhibit 10.2 to the Registrant's
Quarterly Report on form 10-Q for the quarter ended June 30, 1992.
10.5 Third amendment to the Credit Agreement, dated March 5, 1993 between
Rheox, Inc. and Subsidiary Guarantors and the Chase Manhattan Bank
(National Association) and the Nippon Credit Bank, Ltd as Co-Agents
- incorporated by reference to Exhibit 10.7 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.6 Fourth and Fifth Amendments to the Credit Agreement, dated September
23, 1994 and December 15, 1994, respectively, between Rheox, Inc.
and Subsidiary Guarantors and the Chase Manhattan Bank (National
Association) and the Nippon Credit Bank, Ltd. as Co-Agents -
incorporated by reference to Exhibit 10.6 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1994.
10.7 Sixth and Seventh Amendments to the Credit Agreement, dated
September 23, 1995 and February 2 1996, respectively, between Rheox,
Inc. and Subsidiary Guarantors and the Chase Manhattan Bank
(National Association) and the Nippon Credit Bank, Ltd. as Co-
Agents.
10.8 Credit Agreement dated as of October 18, 1993 among Louisiana
Pigment Company, L.P., as Borrower, the Banks listed therein and
Citibank, N.A., as Agent - incorporated by reference to Exhibit
10.11 to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1993.
10.9 Security Agreement dated October 18, 1993 from Louisiana Pigment
Company, L.P., as Borrower, to Citibank, N.A., as Agent -
incorporated by reference to Exhibit 10.12 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1993.
10.10 Security Agreement dated October 18, 1993 from Kronos Louisiana,
Inc. as Grantor, to Citibank, N.A., as Agent - incorporated by
reference to Exhibit 10.13 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1993.
10.11 KLA Consent and Agreement dated as of October 18, 1993 between
Kronos Louisiana, Inc. and Citibank, N.A., as Agent - incorporated
by reference to Exhibit 10.14 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1993.
10.12 Guaranty dated October 18, 1993, from Kronos, Inc., as guarantor, in
favor of Lenders named therein, as Lenders, and Citibank, N.A., as
Agent - incorporated by reference to Exhibit 10.15 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993.
10.13 Mortgage by Louisiana Pigment Company, L.P. dated October 18, 1993
in favor of Citibank, N.A. - incorporated by reference to Exhibit
10.16 to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1993.
10.14 Lease Contract dated June 21, 1952, between Farbenfabrieken Bayer
Aktiengesellschaft and Titangesellschaft mit beschrankter Haftung
(German language version and English translation thereof) -
incorporated by reference to Exhibit 10.14 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1985.
10.15 Contract on Supplies and Services among Bayer AG, Kronos Titan-GmbH
and Kronos International, Inc. dated June 30, 1995 (English
translation from German language document) - incorporated by
reference to Exhibit 10.1 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1995.
10.16 Agreement dated February 8, 1984, between Bayer AG and Kronos Titan
GmbH (German language version and English translation thereof) -
incorporated by reference to Exhibit 10.16 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1985.
10.17 Richards Bay Slag Sales Agreement dated May 1, 1995 between Richards
Bay Iron and Titanium (Proprietary) Limited and Kronos, Inc.
10.18 Formation Agreement dated as of October 18, 1993 among Tioxide
Americas Inc., Kronos Louisiana, Inc. and Louisiana Pigment Company,
L.P. - incorporated by reference to Exhibit 10.2 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1993.
10.19 Joint Venture Agreement dated as of October 18, 1993 between Tioxide
Americas Inc. and Kronos Louisiana, Inc. - incorporated by reference
to Exhibit 10.3 to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1993.
10.20 Amendment No. 1 to Joint Venture Agreement dated as of December 20,
1995 between Tioxide Americas Inc. and Kronos Louisiana, Inc.
10.21 Kronos Offtake Agreement dated as of October 18, 1993 between Kronos
Louisiana, Inc. and Louisiana Pigment Company, L.P. - incorporated
by reference to Exhibit 10.4 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1993.
10.22 Amendment No. 1 to Kronos Offtake Agreement dated as of December 20,
1995 between Kronos Louisiana, Inc. and Louisiana Pigment Company,
L.P.
10.23 Tioxide Americas Offtake Agreement dated as of October 18, 1993
between Tioxide Americas Inc. and Louisiana Pigment Company, L.P. -
incorporated by reference to Exhibit 10.5 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1993.
10.24 Amendment No. 1 to Tioxide Americas Offtake Agreement dated as of
December 20, 1995 between Tioxide Americas Inc. and Louisiana
Pigment Company, L.P.
10.25 TCI/KCI Output Purchase Agreement dated as of October 18, 1993
between Tioxide Canada Inc. and Kronos Canada, Inc. - incorporated
by reference to Exhibit 10.6 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1993.
10.26 TAI/KLA Output Purchase Agreement dated as of October 18, 1993
between Tioxide Americas Inc. and Kronos Louisiana, Inc. -
incorporated by reference to Exhibit 10.7 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1993.
10.27 Master Technology Exchange Agreement dated as of October 18, 1993
among Kronos, Inc., Kronos Louisiana, Inc., Kronos International,
Inc., Tioxide Group Limited and Tioxide Group Services Limited -
incorporated by reference to Exhibit 10.8 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1993.
10.28 Parents' Undertaking dated as of October 18, 1993 between ICI
American Holdings Inc. and Kronos, Inc. - incorporated by reference
to Exhibit 10.9 to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1993.
10.29 Allocation Agreement dated as of October 18, 1993 between Tioxide
Americas Inc., ICI American Holdings, Inc., Kronos, Inc. and Kronos
Louisiana, Inc. - incorporated by reference to Exhibit 10.10 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993.
10.30* 1985 Long Term Performance Incentive Plan of NL Industries, Inc., as
adopted by the Board of Directors on February 27, 1985 -
incorporated by reference to Exhibit A to the Registrant's Proxy
Statement on Schedule 14A for the annual meeting held on April 24,
1985.
10.31 Form of Director's Indemnity Agreement between NL and the
independent members of the Board of Directors of NL - incorporated
by reference to Exhibit 10.20 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1987.
10.32* 1989 Long Term Performance Incentive Plan of NL Industries, Inc. as
adopted by the Board of Directors on February 14, 1989 -
incorporated by reference to Exhibit A to the Registrant's Proxy
Statement on Schedule 14A for the annual meeting held on May 2,
1989.
10.33 Savings Plan for Employees of NL Industries, Inc. as adopted by the
Board of Directors on February 14, 1989 - incorporated by reference
to Exhibit B to the Registrant's Proxy Statement on Schedule 14A for
the annual meeting held May 2, 1989.
10.34* NL Industries, Inc. 1992 Non-Employee Director Stock Option Plan, as
adopted by the Board of Directors on February 13, 1992 -
incorporated by reference to Appendix A to the Registrant's Proxy
Statement on Schedule 14A for the annual meeting held April 30,
1992.
10.35 Intercorporate Services Agreement by and between Valhi, Inc. and the
Registrant effective as of January 1, 1995 - incorporated by
reference to Exhibit 10.1 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1995.
10.36 Intercorporate Services Agreement by and between Contran Corporation
and the Registrant effective as of January 1, 1995 -incorporated by
reference to Exhibit 10.2 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1995.
10.37 Intercorporate Services Agreement by and between Tremont Corporation
and the Registrant effective as of January 1, 1995.
10.38 Insurance Sharing Agreement, effective January 1, 1990, by and
between the Registrant, NL Insurance, Ltd. (an indirect subsidiary
of Tremont Corporation) and Baroid Corporation - incorporated by
reference to Exhibit 10.20 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1991.
10.39* Description of terms of an executive severance agreement between the
Registrant and Joseph S. Compofelice - incorporated by reference to
the last paragraph of page 16 entitled "Employment Agreements" of
the Registrant's definitive proxy statement dated March 30, 1994.
10.40* Description of terms of an executive severance agreement between the
Registrant and Lawrence A. Wigdor - incorporated by reference to the
last paragraph on page 16 entitled "Employment Agreements" of the
Registrant's definitive proxy statement dated March 29, 1995.
10.41* Executive Severance Agreement effective as of December 31, 1991 by
and between the Registrant and J. Landis Martin - incorporated by
reference to Exhibit 10.22 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1991.
10.42* Supplemental Executive Retirement Plan for Executives and Officers
of NL Industries, Inc. effective as of January 1, 1991 -
incorporated by reference to Exhibit 10.26 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.43* Agreement to Defer Bonus Payment dated December 28, 1995 between the
Registrant and Lawrence A. Wigdor and related trust agreement.
21.1 Subsidiaries of the Registrant.
23.1 Consent of Independent Accountants.
27.1 Financial Data Schedules for the year ended December 31, 1995.
99.1 Annual Report of Savings Plan for Employees of NL Industries, Inc.
(Form 11-K) to be filed under Form 10-K/A to the Registrant's Annual
Report on Form 10-K within 180 days after December 31, 1995.
* Management contract, compensatory plan or arrangement.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
NL Industries, Inc.
(Registrant)
By /s/ J. Landis Martin
J. Landis Martin, March 1, 1996
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the date indicated:
/s/ J. Landis Martin /s/ Harold C. Simmons
J. Landis Martin, Harold C. Simmons,
March 1, 1996 March 1, 1996
Director, President and Chairman of the Board
Chief Executive Officer
/s/ Glenn R. Simmons /s/ Joseph S. Compofelice
Glenn R. Simmons, Joseph S. Compofelice,
March 1, 1996 March 1, 1996
Director Director, Vice President and
Chief Financial Officer
/s/ Kenneth R. Peak /s/ Dr. Lawrence A. Wigdor
Kenneth R. Peak, Dr. Lawrence A. Wigdor,
March 1, 1996 March 1, 1996
Director Director, President and Chief
Executive Officer of Kronos
and Rheox
/s/ Elmo R. Zumwalt, Jr. /s/ Dennis G. Newkirk
Elmo R. Zumwalt, Jr., Dennis G. Newkirk,
March 1, 1996 March 1, 1996
Director Vice President and Controller
(Principal Accounting Officer)
EXHIBIT 10.7
THIS INSTRUMENT IS SECURED BY A DEED OF TRUST, ASSIGNMENT OF PERMITS,
RENTS AND BENEFITS, SECURITY AGREEMENT AND FIXTURE FILING, DATED AS OF
JUNE 18, 1991
SIXTH AMENDMENT TO CREDIT AGREEMENT
SIXTH AMENDMENT dated as of September 23, 1995 TO CREDIT AGREEMENT
dated as of March 20, 1991 among RHEOX, INC., a Delaware corporation (the
"Company"); RHEOX INTERNATIONAL, INC., a Delaware corporation (the "Subsidiary
Guarantor"); each of the lenders that is a signatory hereto (individually, a
"Bank" and, collectively, the "Banks"); THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association, and THE NIPPON CREDIT BANK, LTD.,
a Japanese banking corporation acting through its New York branch, as co-agents
for the Banks (each in such capacity, a "Co-Agent" and, collectively, the "Co-
Agents"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as administrative
agent for the Banks (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
WHEREAS, the parties hereto are parties to a Credit Agreement dated as
of March 20, 1991 among the Company, the Subsidiary Guarantor, the Banks, the
Co-Agents and the Administrative Agent (as at any time amended or otherwise
modified, the "Credit Agreement"; terms defined therein having their respective
defined meanings when used herein unless otherwise defined herein);
WHEREAS, the Company has requested that the Credit Agreement be
amended, and the Banks are willing to consent to such amendment upon the terms
and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS. The Credit Documents are hereby amended
(effective as provided in Section 3 hereof) as follows:
A. The first sentence of the definition of "Revolving Credit
Termination Date" in Section 1.01 of the Credit Agreement is amended
to read as follows:
"'Revolving Credit Termination Date' shall mean
September 23, 1996."
B. Each reference in the Credit Agreement and the other Credit
Documents to the Credit Agreement shall be deemed to be a reference to the
Credit Agreement as amended hereby. Except as expressly provided in this
Section 1, the Credit Agreement shall remain unchanged and in full force
and effect.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of the Company and
the Subsidiary Guarantor represents and warrants that:
A. The execution and delivery of this Amendment by it has been duly
authorized by all necessary corporate action on its part.
B. This Amendment has been duly executed and delivered by it, and
each of this Amendment and the Credit Agreement as modified hereby constitutes
its legal, valid and binding obligation enforceable in accordance with its
respective terms subject, however, to the application by a court of general
principles of equity and to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
SECTION 3. EFFECTIVENESS. The provisions of Section 1 hereof shall
become effective on the date by which counterparts hereof have been duly
executed by the Company, the Subsidiary Guarantor, the Banks and the
Administrative Agent and delivered to the Administrative Agent and the
Administrative Agent has received evidence reasonably satisfactory to it as to
the truth of the representation contained in Section 2.A hereof.
SECTION 4. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which may be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 5. GOVERNING LAW. This Amendment shall be governed and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers duly authorized as of the date first
above written.
RHEOX, INC.
By
Name:
Title:
RHEOX INTERNATIONAL, INC.
By
Name:
Title:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as
Co-Agent and
Administrative Agent
By
Name:
Title:
THE NIPPON CREDIT BANK, LTD.,
as Co-Agent
By
Name:
Title:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By
Name:
Title:
VAN KAMPEN MERRITT PRIME
RATE INCOME TRUST
By
Name:
Title:
RESTRUCTURED OBLIGATIONS BACKED
BY SENIOR ASSETS B.V.
BY CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., its Portfolio
Advisor:
By
Name:
Title:
STICHTING RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS 2 (ROSA2)
BY CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., its Portfolio
Advisor:
By
Name:
Title:
GIROCREDIT BANK,
NEW YORK BRANCH
By
Name:
Title:
BANQUE PARIBAS
By
Name:
Title:
THIS INSTRUMENT IS SECURED BY A DEED OF TRUST, ASSIGNMENT OF PERMITS,
RENTS AND BENEFITS, SECURITY AGREEMENT AND FIXTURE FILING, DATED AS OF
JUNE 18, 1991
SEVENTH AMENDMENT TO CREDIT AGREEMENT
SEVENTH AMENDMENT dated as of February 2, 1996 TO CREDIT AGREEMENT
dated as of March 20, 1991 among RHEOX, INC., a Delaware corporation (the
"Company"); RHEOX INTERNATIONAL, INC., a Delaware corporation (the "Subsidiary
Guarantor"); each of the lenders that is a signatory hereto (individually, a
"Bank" and, collectively, the "Banks"); THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association, and THE NIPPON CREDIT BANK, LTD.,
a Japanese banking corporation acting through its New York branch, as co-agents
for the Banks (each in such capacity, a "Co-Agent" and, collectively, the "Co-
Agents"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as administrative
agent for the Banks (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
WHEREAS, the parties hereto are parties to a Credit Agreement dated as
of March 20, 1991 among the Company, the Subsidiary Guarantor, the Banks, the
Co-Agents and the Administrative Agent (as at any time amended or otherwise
modified, the "Credit Agreement"; terms defined therein having their respective
defined meanings when used herein unless otherwise defined herein);
WHEREAS, the Company has requested that the Credit Agreement be
amended, and the Banks are willing to consent to such amendment upon the terms
and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS. The Credit Documents are hereby amended
(effective as provided in Section 3 hereof) as follows:
A. Section 9.07 of the Credit Agreement is amended by (i)
relettering clauses (d), (e) and (f) thereof to be clauses (e), (f)
and (g) respectively and (ii) inserting a new clause (d) therein
reading as follows:
"(d) Indebtedness of the Company and its Subsidiaries to NL in
an aggregate principal amount not exceeding $5,150,000 (or the
equivalent or such amount (as of the date such Indebtedness is
incurred) in any other currency), provided that the proceeds of such
Indebtedness shall be used solely to make Investments permitted by
Section 9.08(d) hereof (and it is understood and agreed that nothing
contained in Section 9.18 hereof shall be deemed to prohibit the
repayment of the principal of, or the payment of interest on, such
Indebtedness);"
B. Each reference in the Credit Agreement and the other Credit
Documents to the Credit Agreement shall be deemed to be a reference to the
Credit Agreement as amended hereby. Except as expressly provided in this
Section 1, the Credit Agreement shall remain unchanged and in full force
and effect.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of the Company and
the Subsidiary Guarantor represents and warrants that:
A. The execution and delivery of this Amendment by it has been duly
authorized by all necessary corporate action on its part.
B. This Amendment has been duly executed and delivered by it, and
each of this Amendment and the Credit Agreement as modified hereby constitutes
its legal, valid and binding obligation enforceable in accordance with its
respective terms subject, however, to the application by a court of general
principles of equity and to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
SECTION 3. EFFECTIVENESS. The provisions of Section 1 hereof shall
become effective on the date by which counterparts hereof have been duly
executed by the Company, the Subsidiary Guarantor, the Majority Banks and the
Administrative Agent and delivered to the Administrative Agent.
SECTION 4. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which may be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 5. GOVERNING LAW. This Amendment shall be governed and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers duly authorized as of the date first
above written.
RHEOX, INC.
By
Name:
Title:
RHEOX INTERNATIONAL, INC.
By
Name:
Title:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as
Co-Agent and
Administrative Agent
By
Name:
Title:
THE NIPPON CREDIT BANK, LTD.,
as Co-Agent
By
Name:
Title:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By
Name:
Title:
VAN KAMPEN MERRITT PRIME
RATE INCOME TRUST
By
Name:
Title:
RESTRUCTURED OBLIGATIONS BACKED
BY SENIOR ASSETS B.V.
BY CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., its Portfolio
Advisor:
By
Name:
Title:
STICHTING RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS 2 (ROSA2)
BY CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., its Portfolio
Advisor:
By
Name:
Title:
GIROCREDIT BANK,
NEW YORK BRANCH
By
Name:
Title:
BANQUE PARIBAS
By
Name:
Title:
EXHIBIT 10.17
(***) - Denotes confidential text filed with SEC under separate cover.
RICHARDS BAY SLAG SALES AGREEMENT
THIS AGREEMENT is dated this 1st day of May, 1995, by and between RICHARDS BAY
IRON AND TITANIUM (PROPRIETARY) LIMITED, a South African corporation with
offices at Richards Bay, Natal, South Africa (hereinafter called "RBIT"), and
KRONOS INC., a Delaware corporation with offices at P.O. Box 700, Wyckoffs Mill
Road, Hightstown, New Jersey, 08520, U.S.A. (hereinafter called "BUYER").
W I T N E S S E T H :
WHEREAS RBIT and Buyer entered into an agreement for the purchase and sale of
titanium bearing materials dated as of the 1st day of October, 1989 and amended
January 1, 1991 and February 15, 1994;
WHEREAS RBIT and Buyer wish to renew their agreement;
NOW, THEREFORE, for and in consideration of the covenants and conditions herein
contained, the parties hereto agree as follows, effective January 1, 1995:
ARTICLE I. SCOPE
RBIT agrees to sell and deliver, and Buyer agrees to buy and take delivery
of, titanium-bearing slag (hereinafter called "RB Slag") produced at RBIT's
plant at Richards Bay, Natal, South Africa (hereinafter called "RBIT's
plant") for use in Buyer's chloride-process pigment plants in the
quantities and at the times hereinafter specified and in accordance with
the terms of this agreement (the "Agreement").
ARTICLE II. DEFINITIONS
Unless otherwise indicated, a "ton" is a metric ton of one thousand
kilograms dry weight, a "day", "month" and a "year" are a calendar day,
month and year respectively, "dollars", "cents" and the dollar and cent
signs ("$" and "cents") refer to lawful money of the United States of
America, "Official Samples" has the meaning given to it in Article XI. and
all percentages are based on dry weights. "Taxes and duties" means all or
any levies, imposts, duties, charges, fees, deductions and withholdings
levied or imposed by any national, local or other public body or authority
and "STEM" means the confirmation of availability of sufficient RB Slag for
a particular shipment, at the Richards Bay harbour, on a given date or
period to be stated when such confirmation is requested and given.
ARTICLE III. TERM
This Agreement shall be in effect for a term of six (6) years commencing on
January 1, 1995, up to and including December 31, 2000 (the "Term"),
subject to prior termination as hereinafter provided.
ARTICLE IV. QUANTITY
Buyer shall purchase and take delivery of RBIT shall sell and deliver, the
following quantity of RB Slag during each year of the Term as follows (the
"Contracted Quantity"):
A. (***)
B. (***)
Buyer shall commit to the actual quantity to be purchased in 1996
within the above range by written notice to RBIT on or before April
18, 1995, failing which such quantity shall be determined by RBIT.
C. (***)
Buyer shall commit to the actual quantity to be purchased in 1997
within the above range by written notice to RBIT on or before
September 30, 1996, failing which such quantity shall be determined by
RBIT.
D. (***)
Buyer shall commit to the actual quantity to be purchased in each
of such years within the above range by written notice to RBIT on or
before September 30th of the previous year, failing which such
quantity shall be determined by RBIT.
E. (***)
ARTICLE V. PRICE
A. Basic Prices
The basic price for RB Slag which is sold and delivered hereunder for
each year that this Agreement is in force shall be that amount per ton
FOB (Incoterms 1990) Buyer's Vessel at Richards Bay set forth below
for each such year (the "Basic Price"):
1. For 1995, the Basic Price of RB Slag shall be (***) per ton.
2. For 1996, the Basic Price of RB Slag shall be (***) per ton plus
Escalation as herein defined.
3. For 1997 to 2000 inclusively, the Basic Price of RB Slag shall be
the previous year's Basic Price plus Escalation as herein
defined.
The term "Escalation" as it relates to this Agreement, is defined as
the percentage increase in the All Items, All Urban Consumer Price
Index in the USA ("AUCPI") for the applicable period of December to
December set forth below as reported in the Detailed CPI Report issued
by the US Department of Labor, multiplied by the applicable Basic
Price. If there is no increase, or if there is a decrease in the
AUCPI, Escalation shall be zero. For the year 1996, reference shall
be made to the Escalation for the period of December 1994 to December
1995 and for each of the years 1997 to 2000, to the Escalation for the
period of December to December of the year immediately prior to the
year in question.
B. Price Adjustment for TiO2 Content
The Basic Price established under this Article V. is for RB Slag
containing 85% titanium dioxide (TiO2) content. If the TiO2 content
of a shipment of RV Slag exceeds 85%, the Basic Price shall be
adjusted upwards by 1/170th of the Basic Price for each whole
increment of 0.5% by which the TiO2 content exceeds 85%. If the TiO2
content of such RB Slag is less than 85%, the Basic Price shall be
adjusted downwards by 1/170th of the Basic Price for each decrement of
0.5% or part thereof by which the TiO2 content is less than 85%.
C. The TiO2 content shall be based on RBIT's analyses of the Official
Samples (as defined in Article XI.) subject however, to revisions, if
any, due to an umpire's analysis pursuant to Article XI. Price
adjustments pursuant to this paragraph shall be made as provided
herein and in Article VIII.
D. (***)
ARTICLE VI. SHIPMENTS
A. RBIT shall be responsible for arranging the transport of RB Slag from
its plant to the stockpile area at the loading dock provided by
Portnet at Richards Bay, which shall be solely responsible for loading
RB Slag onboard Buyer's Vessel. Shipments shall be as ordered by and
pursuant to the instructions of Buyer as the same shall be agreed to
by RBIT. Buyer shall obtain any import licenses on or other documents
that may be required to import RB Slag into the country of
destination. RBIT shall obtain any export license on or other
documents that may be required to export RB Slag from South Africa.
B. RBIT and Buyer shall agree on an annual shipping schedule. Buyer
shall arrange for and furnish a bulk cargo vessel (herein called
"Buyer's Vessel") for each shipment. Notwithstanding the agreed
shipping schedule, Buyer must request and receive STEM from RBIT in
respect to each shipment at least one(1) month prior to the arrival of
Buyer's Vessel at Richards Bay. Buyer shall also provide RBIT with a
telefaxed notice of arrival of each of Buyer's Vessels at least two
(2) weeks prior to its estimated time of arrival at Richards Bay.
C. In the event RBIT has given STEM to Buyer and if RB Slag is not
available for loading at the stockpile area provided by Portnet at
Richards Bay on the date for which STEM has been given and if
demurrage or dead freight is incurred as a result of such non-
availability, RBIT shall pay Buyer demurrage or dead freight at the
rate specified in Buyer's Charter Party. In arranging for any Buyer's
Vessel, Buyer will use its best efforts to have the terms of the
Charter Party permit RBIT, in the case of a shortfall of RB Slag at
the Richards Bay harbour, to elect between having Buyer's Vessel:
a) wait for arrival of RB Slag at the loading dock and thereby incur
demurrage; or
b) load a portion of a shipment of RB Slag and thereby incur dead
freight.
In order to facilitate RBIT's decision, Buyer shall promptly advise
RBIT, on request, of the applicable demurrage or dead freight rates.
RBIT's decision shall be made and notified to Buyer at the latest on
the date for which STEM has been given. In no event shall RBIT be
liable for any losses, costs or damages in excess of such demurrage or
dead freight rates, in the event of non-availability of RB Slag as
defined in this Article VI.
ARTICLE VII. TITLE AND RISK OF LOSS
Title to and risk of loss in RB Slag shall pass to Buyer when the RB Slag
has effectively passed the ship's rail of Buyer's Vessel at the loading
dock at Richards Bay.
ARTICLE VIII. INVOICING AND PAYMENT
A. Regular Payments
Unless otherwise agreed, payment for RB Slag shall be made by Buyer in
U.S. dollars by telegraphic transfer to RBIT's account (***) at
Citibank N.A., 111 Wall Street, New York, NY 10043, USA, naming RBIT
as beneficiary, or such other account as RBIT shall notify to Buyer,
within (***) days of receipt by Buyer of the following documents:
1. RBIT's commercial invoice covering the shipment, based on the
assumption that the TiO2 content of RB Slag is 85%;
2. Surveyor's certificate of mass (weight certificate);
3. Full set of clean on-board ocean bills of lading covering the
shipment by Buyer's Vessel in question, designating RBIT as
shipper and Buyer or any affiliated company designated by Buyer
as consignee; and
4. Such other documentation and papers as may be required to clear
RB Slag for shipment from South Africa to the port of
destination.
The above-mentioned documents shall be forwarded to Buyer's affiliate
company to which shipment is being made. A copy of Item 1 shall
simultaneously be sent to : Controller, Kronos Inc., 2 Greenspoint
Plaza, 16825 Northchase Drive, Houston, Texas 77060-2544. RBIT shall
accept payment from any of Buyer's affiliate companies, but Buyer
shall be primarily and separately liable for all sums due under this
Agreement.
B. Final Invoice
Any price adjustment which may be necessary as a result of the outcome
of RBIT's analysis of the Official Sample shall be embodied in a final
invoice forwarded to Buyer. In the event of a debit to Buyer, the
final invoice shall be presented, and payment by Buyer shall be
effected, in the same manner as in Article VIII.A. above. In the case
of a credit to Buyer, RBIT shall remit the relevant amount to Buyer by
telegraphic transfer within (***) days of preparation of the final
invoice.
C. Final Annual Invoice and Payment
By January 31 of each year, RBIT shall prepare and present a Final
Annual Invoice relating to the previous year, which Final Annual
Invoice shall reflect amounts due, if any, calculated as provided for
in Article IV.B. (***)
Payment by Buyer of the total amount due, if any, on the Final Annual
Invoice shall be effected by telegraphic transfer to RBIT within (***)
days of Buyer's receipt of such Final Annual Invoice.
ARTICLE IX. SPECIFICATIONS
A. RB Slag shall contain at least 84%, but typically 85%, equivalent TiO2
by weight, determined as set forth in ARTICLE XI. of this Agreement.
B. RB Slag shall meet the following analyses:
1. Maximum chromium oxide (CR2O3)content of 0.30% by weight;
2. Maximum vanadium pentoxide (V2O5)content of 0.60% by weight;
3. Maximum reduced titanium dioxide (Ti2O3) content of 35% by
weight;
4. Maximum manganese oxide (MnO) content of 2.5% by weight;
5. Maximum calcium oxide (CaO) content of 0.20% by weight;
6. Maximum magnesium oxide (MgO) content of 1.30% by weight;
7. Maximum moisture (H2O) content of 0.2% by weight.
C. The specifications set out in Article IX.A. and B. shall be referred
to in this Agreement as the "Specifications."
ARTICLE X. WARRANTY
A. RBIT warrants that RB Slag sold and delivered hereunder shall conform
to the Specifications set forth in Article IX. hereof.
B. In the event that any shipment of RB Slag sold and delivered hereunder
does not conform to the said Specifications and in the event the
parties are unable to agree on an equitable price adjustment, RBIT
shall, at its cost and expense, remove or otherwise dispose of such
non-conforming RB Slag and replace it with an equivalent quantity of
RB Slag which meets the Specifications. RBIT's obligation to remove
or dispose of and replace non-conforming RB Slag shall not be
applicable in the event Buyer fails to give notice to RBIT of such
non-conformance as provided for in Article XI.C.
C. The warranty and remedy expressed in this Article X. is the sole and
exclusive warranty made by RBIT with respect to RB Slag to be sold and
delivered under this Agreement and the exclusive remedy available to
Buyer, whether based on strict liability, negligence, breach of
express or implied warranty or any other theory or cause of action.
RBIT makes no other representation or warranty of any kind other than
as stated herein and this warranty may not be modified by any agent or
other representative or RBIT.
D. RBIT shall not be responsible for any damages whatsoever, whether
direct, indirect, consequential on or incidental, relating directly or
indirectly to the use, sale and /or resale of any RB Slag. RBIT's
sole obligation in the event of sale and delivery of non-conforming RB
Slag shall be that set forth in this Article X. Buyer agrees to
indemnify and hold RBIT harmless from and against any claims, losses,
damages, costs, expenses or liability of whatsoever nature from third
parties arising out of or in connection with such use, sale and / or
resale of any RB Slag.
ARTICLE XI. INSPECTION, WEIGHING, SAMPLING AND ANALYSIS
A. Inspection and Weighing
Bureau Veritas, or another mutually agreed recognized independent
surveyor at Richards Bay, shall inspect Buyer's Vessel for cleanliness
and/or hold protection and is entitled to reject any vessel not found
to be suitable for loading of RB Slag. Such rejection shall be for
Buyer's account. Time taken for such inspection shall not count as
laytime. Such surveyor shall determine the weight of RB Slag loaded
aboard Buyer's Vessel, which shall include moisture. The weight
determined shall be adjusted for the moisture content on the basis of
the analyses of the Official Sample, with the resulting dry weight to
be the basis for invoicing RB Slag for payment by Buyer. One-half of
surveyor's cost of independent cargo surveys shall be paid by Buyer
and shall be included in the commercial invoice referred to in Article
VIII.A.1.
It is acknowledged that Portnet has installed an assized weightometer
in the belt loading system. If and when such installation is fully
functional and its accuracy has been proven, RBIT and Buyer will
discuss the use of such weightometer for determination of the weight
of RB Slag loaded aboard Buyer's Vessel.
B. Sampling
1. Each shipment of RB Slag delivered to Buyer's Vessel at Richards
Bay shall be sampled by Bureau Veritas or such other independent
testing laboratory as may be agreed between the parties. Such
laboratory shall take and distribute representative samples
(hereinafter called "Official Sample(s)") from each shipment in
accordance with the "Sampling and Sample Preparation Procedure",
set forth in Exhibit "A", Procedure "SAM0078", attached hereto
and made a part hereof.
2. The fees for services of such independent testing laboratory
shall be borne equally by RBIT and Buyer and shall be included in
RBIT's commercial invoice to Buyer referred to in Article
VIII.A.1.
C. Analysis
1. Method of Analysis - All analyses shall be made by the methods
outlined in Exhibit "B", Procedure "SAM004", "SAM051", Exhibit
"E", Procedure "SAM079" and Exhibit "F", Procedure "SAM008",
which are attached hereto and made a part hereof.
2. Analysis by RBIT - RBIT shall analyse the Official Samples and
the result of such analysis for each shipment shall be used to
determine any price adjustment of RB Slag and shall accompany the
final invoice forwarded to Buyer in accordance with Article
VIII.B.
3. Analysis by Buyer - Buyer may, but shall not be obligated to,
analyse the Official Samples. Unless Buyer notifies RBIT, within
sixty (60) days of receipt of an Official Sample, that Buyer's
analysis indicated that RB Slag fails to meet the Specifications
contained in ARTICLE IX. or that the TiO2 content is more than
one-half percent (0.5%) different from RBIT's analysis, the
results of RBIT's analysis shall be final and conclusive.
4. Umpire Procedure - Should Buyer's analysis of the Official Sample
indicate that RB Slag does not meet the Specifications contained
in Article IX. or that the TiO2 content of RB Slag is more than
one-half percent (0.5%) different from RBIT's analysis, Buyer may
so advise RBIT and RBIT shall request the independent testing
laboratory referred to above to forward for analysis the retained
Official Sample to such umpire analyst (being and independent
testing laboratory) as shall be agreed to from time to time by
the parties. The parties hereby agree that Inspectorate Samplers
& Analysts Inc., P.O. Box 50, 180 South Main Street, Ambler,
Pennsylvania U.S.A. 19002 shall be the umpire analyst until such
time as the parties otherwise agree.
5. Settlement - The umpire's analysis as to TiO2 content and that of
Buyer or RBIT, whichever is in closer agreement to the umpire's
analysis, shall be averaged as the basis for final settlement;
provided that if the umpire's analysis lies exactly halfway
between Buyer's and RBIT's analyses, the umpire's analysis shall
be the basis for final settlement. If an umpire's analysis is
required on any Specification other than TiO2, the umpire's
analysis and that of Buyer or RBIT, whichever is in closer
agreement to the umpire's analysis, shall be averaged as the
basis for final settlement; provided that if the umpires's
analysis lies exactly halfway between the Buyer's and RBIT's
analyses, the umpire's analysis shall be the basis for final
settlement. If such analysis determines that RB Slag does not
meet each of the Specifications contained in Article IX., the
parties shall proceed as described in Article X. of this
Agreement. The cost of an umpire's analysis shall be borne by
the party whose analysis varies most from the umpire's analysis
unless such variations are equal whereupon the cost shall be
borne equally between RBIT and Buyer.
D. Revisions of Sampling and Analytical Procedures
The procedures set forth in the Exhibits referred to in this Article
are believed to be the most satisfactory ones now available. In the
event better procedures become available, each of said Exhibits may be
revised with the written approval of Buyer and RBIT.
ARTICLE XII. ARBITRATION
A. Any dispute between RBIT and buyer arising out of or related to this
Agreement or the performance hereof, including contentions that a
party hereto has failed in the performance of its obligations, shall,
unless settled by mutual agreement, be referred for conciliation and,
failing settlement, for binding arbitration under the Rules of the
International Chamber of Commerce ("ICC"). The parties agree that
such conciliation and arbitration shall take place in London, England.
The arbitration shall be presided over by a single arbitrator chosen
by the parties, failing which, by three arbitrators of which number
each party shall appoint one and the third arbitrator (who shall serve
as the chairman of the arbitration tribunal) shall be chosen by the
two arbitrators appointed by the parties, within ten (10) days after
their appointment.
B. In the event that the arbitration panel has three members and the
first two arbitrators cannot agree on the third arbitrator within
thirty (30) days of their nomination, or that one party fails to
nominate its arbitrator within sixty (60) days after the date on which
a request for arbitration has been served, Such arbitrator shall be
nominated by the International Court of Arbitration. Such arbitrator
shall be of British nationality and of the legal profession.
C. In the event of a difference between the arbitrators, the decision of
the majority shall constitute the judgment of the arbitrators. A
judgment of any court of law of competent jurisdiction may be entered
upon any award made by the arbitrators.
D. In the event one party fails to cooperate in the arbitration
proceedings by refusing to attend before the arbitration panel, the
other party shall be entitled, upon thirty (30) days notice, to
present evidence before the arbitrator(s) in the absence of such party
and the decision of the arbitrator(s) shall be binding on such party
notwithstanding its failure to cooperate or participate therein.
ARTICLE XIII. TAXES AND DUTIES
All South African taxes and duties now or hereafter imposed on the export
of RB Slag, in connection with this Agreement, shall be for the sole
account of RBIT. All other taxes or duties now or hereafter imposed in
connection with this Agreement, shall be for the sole account of Buyer.
ARTICLE XIV. PATENTS
A. RBIT shall protect and hold Buyer harmless against any and all claims
that RB Slag in the state or form as sold under this Agreement
infringes or allegedly infringes any product claims of any South
African patent owned by third parties. RBIT shall, at its own cost
and expense defend any and all suits which may be brought against
Buyer on account of an alleged infringement of such South African
patent or patents and RBIT shall pay any and all fees, including
reasonable attorney's fees, costs and damages awarded in said suits;
provided, however, that the total liability for damages under this
ARTICLE XIV. shall in no event exceed the aggregate sales price of RB
Slag sold to Buyer during the year in which such alleged infringement
commenced.
B. RBIT's obligations pursuant to this Article XIV. shall be conditional
upon Buyer giving prompt notice to RBIT of any claims by third parties
of any such alleged infringement and of all information available to
Buyer in respect of such alleged infringement or claim.
ARTICLE XV. FORCE MAJEURE
A. In the event of any contingency which is beyond the reasonable control
of RBIT or Buyer including, but not limited to (i) any strike,
lockout, industrial dispute, difference with workmen, accident, fire,
explosion, drought, earthquake, flood, mobilization, war (whether
declared or undeclared), act of any belligerent in any such war, civil
commotion, political demonstration or disturbance, riot, rebellion,
revolution or blockage, (ii) any requirement, regulation, restriction,
intervention, or other act of any Government, whether legal or
otherwise, (iii) any inability to secure or delay in securing export
licenses or import licenses, cargo space or other transportation
facilities necessary for the shipment of receipt of RB Slag or fuel or
other supplies or material including water, ilmenite ore or electric
power necessary for the operation of the mines and plants where RB
Slag is produced or consumed, (iv) any delay in or interruption to
transportation by rail, water or otherwise, (v) any damage to or
destruction of such mines or plants or any breakdown of plants or
machinery of RBIT or Buyer, or (vi) any other contingency which is
beyond the reasonable control of RBIT or Buyer, whether or not of the
nature or character hereinbefore specifically enumerated, which event
delays or interferes with the performance of this Agreement or the
consumption of RB Slag (an event of "Force Majeure"), then such event
shall be considered sufficient justification for delay in making
shipment or delivery or taking delivery or performance hereunder
(other than the payment of money), in whole or in part, until such
event ceases to exist, and this Agreement shall be deemed suspended
for so long as such event delays or interferes with the performance
hereof, provided that prompt notice (in no event later than one week
of the occurrence of the event) of the commencement and end of any
such event is given by the party affected to the other party. Any
delay or interference which affects RBIT's ability to supply RB Slag
to customers shall entitle RBIT to allocate equitably any available RB
Slag among customers.
B. In the event of a Force Majeure, the obligation of RBIT to sell and
deliver and of Buyer to buy and to take the Contracted Quantity of RB
Slag with respect to any year shall, unless otherwise agreed between
the parties, terminate at the end of the year as to such quantities of
RB Slag not shipped by the end of the year due to such Force Majeure
event. Nothing contained in this Article shall require Buyer to pay
for, or RBIT to make up or compensate for, any RB Slag not delivered
due to the application of this Article XV.
ARTICLE XVI. DEFAULT AND TERMINATION
A. A "default" shall mean any failure by either party to make any payment
or to perform any obligation pursuant to this Agreement for any reason
other than an event of Force Majeure as defined in ARTICLE XV. and the
party in default has failed to remedy or diligently commenced to
remedy such failure to pay or to perform within ninety (90) days after
receiving written notice thereof from the other party. In the event
of a default by one party, the other party not in default shall have
the right (subject to the defaulting party's right to cure its default
pursuant to this Article) to terminate this Agreement forthwith by
providing notice to such effect to the defaulting party.
B. In the event of a default arising from a breach of Buyer's duty to pay
for RB Slag delivered or for the total amount of the Contracted
Quantity in any particular year, RBIT shall have the right to seek
damages for all loss or damage sustained by the default. In addition,
RBIT shall have the right (subject to Buyer's right to cure its
default pursuant to this Article) to terminate this Agreement
forthwith by providing notice to such effect to Buyer. In no event
however shall Buyer be liable for consequential, indirect, incidental
or special damages as a result of a default for failure to pay under
this Agreement.
In the event of any default by RBIT arising from a failure to deliver
RB Slag pursuant to this Agreement, RBIT (subject to RBIT's right to
cure its default pursuant to this Article) shall compensate the Buyer
for all loss or damage actually sustained as a direct result of the
failure to deliver, including, but not limited to, the cost difference
of securing an alternate supply of RB Slag, but excluding indirect,
consequential, punitive or contingent damages of the default Buyer may
suffer therewith including, but not limited to loss of revenue or
profits as a result of Buyer's inability to operate, or shut down of
its operations, loss of use of equipment, or cost of substitute
equipment, claims of third parties, and the like. In addition, Buyer
shall have the right (subject to RBIT's right to cure its default
pursuant to this Article) to terminate this Agreement forthwith, by
providing notice to such effect to RBIT, in the event RBIT does not
deliver at least 90% of the Contracted Quantity of RB Slag in any year
thereof.
C. In the event either party becomes bankrupt or insolvent, commits any
act of bankruptcy or insolvency, makes any proposal, arrangement or
compromise with its creditors or if it is liquidated or if its charter
of incorporation is relinquished or canceled, the other party shall
have the right to immediately terminate this Agreement without notice
or demand.
D. The rights of termination contained in this ARTICLE XVI. are in
addition to the right to demand damages specifically as permitted in
this Agreement and to any other rights and remedies as are available
in this Agreement.
ARTICLE XVII. WAIVER OF DEFAULT
Any failure by either party to give notice in writing to the other party of
any breach or default in any of the terms or conditions of this Agreement
shall not constitute a waiver thereof, nor shall any delay by either party
in enforcing any of its rights hereunder be deemed a waiver of such rights
nor shall a waiver by either party of any defaults of the other party be
deemed a waiver of any other or subsequent defaults.
ARTICLE XVIII. NOTICES
Any notice to be given to either party under the terms of this Agreement
shall be deemed to have been given if delivered by courier service or
transmitted by telefax and subsequently confirmed by prepaid registered
mail to the respective addresses or telefax numbers given below:
Notices to RBIT shall be addressed:
Richards Bay Iron and Titanium (Pty.) Limited
Post Office Box 401,
Richards Bay 3900,
Natal, South Africa
Attention: General Manager, Marketing
Telefax Number: +27.351.31186
with a copy of any such notice addressed to:
QIT-Fer et Titane Inc.
770 Sherbrooke Street
Suite 1800
Montreal, Quebec
Canada H3A 1G1
Attention: Director, Sales & Marketing, Titania Slag
Telefax Number: +1 (514) 286-9336
Notices to Buyer shall be addressed:
Kronos Inc.
P.O. Box 700
Hightstown, New Jersey
U.S.A. 08520
Attention: President
Telefax Number: +1 (609) 443-2496
with a copy of such notice to:
Kronos Inc.
2 Greenspoint Plaza
16825 Northchase Drive
Houston, Texas
U.S.A. 77060-2544
Attention: Director of Purchasing
Telefax Number: +1 (713) 423-3269
or to such other addressor telefax number as the addressee shall have
previously furnished in writing to the addressor. All notices shall be
deemed to have been received on the day of delivery, if delivered, or on
the day of transmission, if sent by telefax, during normal business hours
(9:00 am to 5:00 pm) of the recipient, failing which, such notice shall be
deemed to have been received on the next business day.
ARTICLE XIX. ASSIGNMENT
A. In the event of a sale by Buyer of any of its chloride-process pigment
plants to an unrelated third party, Kronos agrees to obtain as an
integral part of such sale, the assumption by the purchaser of the
obligation to purchase from RBIT upon the same terms and conditions as
in this Agreement, the RB Slag volumes corresponding to such plant,
based on its average annual consumption of the 24 months preceding
such sale.
B. Except as provided in Article XIX.A. above, no party may assign its
rights or obligations under this Agreement without the prior written
consent of the other party. The preceding sentence shall not apply to
assignments made to parents, subsidiaries or related corporations of
the parties hereto, providing that the party executing this Agreement
shall remain primarily responsible for performance of its obligations
hereunder unless such is waived in writing by the other party.
ARTICLE XX. ENTIRE AGREEMENT; AMENDMENT, MODIFICATION
This Agreement states the entire understanding between the parties hereto
with respect to the subject matter hereof, and there are no agreements or
understandings, oral or written, express or implied with reference to the
subject matter hereof that are not merged herein or superseded hereby.
This Agreement shall, effective January 1, 1995, replace the agreement
between RBIT, QIT-Fer et Titane GmbH and Buyer dated October 1, 1989, as
amended on January 1, 1991 and February 15, 1994. This Agreement may not
be changed, modified or supplemented in any manner orally or otherwise
except by an instrument in writing signed by a duly authorized
representative of each of the parties hereto. The parties recognize that,
for administrative purposes, documents such as purchase orders,
acknowledgments, invoices and similar documents may be used during the time
this Agreement is in force. In no event shall any term or condition
contained in any such administrative documents be interpreted as amending
or modifying the terms of this Agreement whether such administrative
documents are signed or not.
ARTICLE XXI. GOVERNING LAW
This Agreement shall be governed by and construed under the substantive and
procedural laws of South Africa in all respects, including construction,
validity and performance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized respective representatives, as of the day and year
first hereinabove written.
RICHARDS BAY IRON & TITANIUM (PROPRIETARY) LIMITED
By: /s/ R. D. Macpherson
Name: R. D. Macpherson
Title: Managing Director
KRONOS INC.
By: /s/ D. C. Weaver
Name: D. C. Weaver
Title: Director Materials Management and Business Development
EXHIBIT 10.20
AMENDMENT NO. 1 TO JOINT VENTURE AGREEMENT
AMENDMENT dated as of December 20, 1995 between TIOXIDE AMERICAS INC.,
a Delaware corporation (the "Tioxide Partner") and KRONOS LOUISIANA, INC., a
Delaware corporation (the "Kronos Partner").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Joint
Venture Agreement dated as of October 18, 1993 (the "Joint Venture Agreement");
and
WHEREAS, the parties hereto desire to amend the Joint Venture
Agreement to provide for the right of either the Tioxide Partner or the Kronos
Partner to prepay the indebtedness incurred by the Joint Venture under the
Credit Agreement by making one or more loans to the Joint Venture.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Joint Venture
Agreement shall have the meaning assigned to such term in the Joint Venture
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Agreement shall from and after the date
hereof refer to the Joint Venture Agreement as amended hereby.
SECTION 2. Amendment of Section 1.01 of the Joint Venture Agreement.
(a) The definition of "Fair Market Value" in Section 1.01 of the Joint Venture
Agreement is amended by adding at the end of the parenthetical in clause (i) of
the first sentence thereof the following phrase:
"; provided that the obligations of the Joint Venture incurred under
the Tioxide Partner Note and the Kronos Partner Note shall not be treated
as Debt, liabilities or other obligations of the Joint Venture outstanding
at such time."
(b) The definition of "Tranche A Debt" in Section 1.01 of the Joint
Venture Agreement is amended by adding at the end thereof the
following phrase: "and provided further that for all purposes of the
preceding proviso all payments made by the Joint Venture intended to
be applied in respect of the Tranche A Debt with the proceeds of any
Tioxide Partner Note shall be deemed to have been so applied."
(c) The definition of "Tranche B Debt" in Section 1.01 of the Joint
Venture Agreement is amended by adding at the end thereof the
following phrase: "and provided further that for all purposes of the
preceding proviso all payments made by the Joint Venture intended to
be applied in respect of the Tranche B Debt with the proceeds of any
Kronos Partner Note shall be deemed to have been so applied."
(d) The following additional definitions are hereby added in alphabetical
order in Section 1.01:
"Partner's JV Interest Proceeds" means proceeds from the disposition
of any interest in the Joint Venture, which interest is held by or
attributable to the holder of any Tioxide Partner Note or any Kronos
Partner Note or which interest is held by or attributable to any
affiliate of such holder.
"Kronos Partner Note" means a duly executed Note issued by the Joint
Venture to the Kronos Partner pursuant to Section 12.07 of this
Agreement.
"Tioxide Partner Note" means a duly executed Note issued by the Joint
Venture to the Tioxide Partner pursuant to Section 12.07 of this
Agreement.
SECTION 3. Amendment of Section 3.03(c) of the Joint Venture
Agreement. (a) Section 3.03(c) of the Joint Venture Agreement is amended by
adding in clause second of the first sentence of Section 3.03(c), after the word
"Debt" each time such word appears in such clause second, the following phrase:
"(provided that the obligations of the Joint Venture incurred under
any Tioxide Partner Note or any Kronos Partner Note shall not be treated as
Debt of the Joint Venture)"
(b) Section 3.03(c) of the Joint Venture Agreement is amended by adding at
the end of clause third of the first sentence of Section 3.03(c) the
following phrase:
"; provided that all amounts paid pursuant to this clause third
shall be deemed to be Partner's JV Interest Proceeds and shall be
deemed applied to satisfy in full the obligations of the Joint Venture
under all Tioxide Partner Note(s) if the Defaulting Partner is the
Tioxide Partner or under all Kronos Partner Note(s) if the Defaulting
Partner is the Kronos Partner."
SECTION 4. Amendment of Section 3.03(d) of the Joint Venture
Agreement. Section 3.03(d) of the Joint Venture Agreement is amended by adding
at the end of clause (ii) of the first sentence thereof and immediately prior to
the word "and" the following phrase:
"; provided that the obligations of the Joint Venture incurred under
any Tioxide Partner Note or any Kronos Partner Note shall not be treated as
Debt of the Joint Venture"
SECTION 5. Amendment of Section 3.03(e) of the Joint Venture
Agreement. (a) Section 3.03(e) of the Joint Venture Agreement is amended by
adding at (A) the end of the definition of "AD" in clause (ii) of the first
sentence thereof and (B) at the end of clause third of the second sentence
thereof and immediately prior to the
word "and", the following phrase in each place:
" (provided that the obligations of the Joint Venture incurred under
any Tioxide Partner Note or any Kronos Partner Note shall not be treated as
Debt of the Joint Venture)"
(b) Section 3.03(e) of the Joint Venture Agreement is amended by adding at
the end of clause fourth in the second sentence thereof the following
phrase:
"; provided that all amounts paid pursuant to this clause fourth shall
be deemed to be Partner's JV Interest Proceeds and shall be deemed applied
to satisfy in full the obligations of the Joint Venture under all Tioxide
Partner Note(s) if the Defaulting Partner is the Tioxide Partner or under
all Kronos Partner Note(s) if the Defaulting Partner is the Kronos
Partner."
SECTION 6. Amendment of Section 4.03 of the Joint Venture Agreement.
(a) Section 4.03 of the Joint Venture Agreement is amended by adding at the end
of clause second and immediately prior to the semi-colon the following phrase:
"; provided that the obligations of the Joint Venture incurred under
any Tioxide Partner Note or any Kronos Partner Note shall not be treated as
Debt of the Joint Venture."
(b) Section 4.03 of the Joint Venture Agreement is amended by adding at
the end of clause fourth in the first sentence thereof the following
phrase:
"; provided that all amounts paid pursuant to this clause fourth shall
be deemed to be Partner's JV Interest Proceeds and shall be deemed applied
to satisfy in full the obligations of the Joint Venture under all Tioxide
Partner Note(s) if the Electing Partner is the Tioxide Partner or under all
Kronos Partner Note(s) if the Electing Partner is the Kronos Partner."
SECTION 7. Amendment of Section 4.06 of the Joint Venture Agreement.
(a) Section 4.06 of the Joint Venture Agreement is amended by adding the
following phrase after the phrase "Debt, liabilities and obligations" in clause
(a)(i) of the first sentence thereof:
"(provided that the obligations of the Joint Venture to the Exiting
Partner incurred under any Tioxide Partner Note or any Kronos Partner Note
shall not be treated as Debt, liabilities or obligations)"
(b) Section 4.06 of the Joint Venture Agreement is amended by adding the
following phrase after the phrase "executory obligations" in clause
(a)(ii) of the first sentence thereof:
"(provided that the obligations of the Joint Venture to the Exiting
Partner incurred under any Tioxide Partner Note or any Kronos Partner Note
shall not be treated as executory obligations)"
(c) Section 4.06 of the Joint Venture Agreement is amended by adding the
following phrase after the phrase "Debt, liabilities and other
obligations" in clause (b)(ii) of the first sentence thereof and in
sub-clause (2) of the provided further clause of the first sentence
thereof:
"(provided that the obligations of the Joint Venture to the Exiting
Partner incurred under any Tioxide Partner Note or any Kronos Partner Note
shall not be treated as Debt, liabilities or other obligations)"
(d) Section 4.06 of the Joint Venture Agreement is amended by changing the
word "Purchasing" to "purchasing" the first time such term is used in
Section 4.06.
(e) Section 4.06 of the Joint Venture Agreement is amended by adding the
following phrase after the phrase "Debt" each time such term is used
in the "provided, however," clause of Section 4.06 and the first time
such term is used in the "provided further" clause of Section 4.06:
"(provided that the obligations of the Joint Venture to the Exiting
Partner incurred under any Tioxide Partner Note or any Kronos Partner Note
shall not be treated as Debt)"
(f) Section 4.06 of the Joint Venture Agreement is amended by adding the
following sentences at the end of such Section 4.06:
"If the Exiting Partner is the Tioxide Partner, all Tioxide Partner
Notes shall be deemed satisfied in full and the Tioxide Partner shall
indemnify and hold harmless the Joint Venture and the purchasing Partner
with respect to all obligations evidenced by a Tioxide Partner Note, and
shall execute all documents reasonably requested by the Joint Venture or
the purchasing Partner to evidence such indemnification and hold harmless
obligations. If the Exiting Partner is the Kronos Partner, all Kronos
Partner Notes shall be deemed satisfied in full and the Kronos Partner
shall indemnify and hold harmless the Joint Venture and the purchasing
Partner with respect to all obligations evidenced by a Kronos Partner Note,
and shall execute all documents reasonably requested by the Joint Venture
or the purchasing Partner to evidence such indemnification and hold
harmless obligations."
SECTION 8. Amendment of Section 12.07. A new Section 12.07 is added
to the Joint Venture Agreement to read in its entirety as follows:
"Section 12.07. Prepayment of Credit Agreement. The Partners agree
that either Partner shall have the right in accordance with this Section
12.07 to prepay (i) in case of the Tioxide Partner, all or any portion of
the Tranche A Debt and (ii) in case of the Kronos Partner, all or any
portion of the Tranche B Debt. If the Tioxide Partner elects to prepay all
or any portion of the Tranche A Debt or the Kronos Partner elects to prepay
all or any portion of the Tranche B Debt, the Partner so electing may
provide to the Joint Venture the funds to effect such prepayment either
through a capital contribution to that Partner's capital account in the
Joint Venture or through a loan to the Joint Venture. If such Partner
elects to provide the funds to the Joint Venture through a loan to the
Joint Venture, the indebtedness incurred by the Joint Venture in connection
with any such prepayment shall be evidenced by a note substantially in the
form of Exhibit 4 to this Agreement. Any such note issued to the Tioxide
Partner shall be referred to herein as a "Tioxide Partner Note" and any
such note issued to the Kronos Partner shall be referred to herein as a
"Kronos Partner Note." Any such note may be issued only if all necessary
consents as are required at such time under the Credit Agreement and the
Joint Venture Agreement have been obtained prior to such issuance. Prior
to issuance of a Tioxide Partner Note, the Tioxide Partner shall deliver to
the Joint Venture evidence reasonably satisfactory to the Joint Venture,
including without limitation a representation and certification, that the
Tioxide Partner has all necessary corporate power and authority and has
taken all necessary corporate action to authorize the transaction to be
evidenced by the Tioxide Partner Note. Prior to issuance of a Kronos
Partner Note, the Kronos Partner shall deliver to the Joint Venture
evidence, reasonably satisfactory to the Joint Venture, that the Kronos
Partner has all necessary corporate power and authority and has taken all
necessary corporate action to authorize the transaction to be evidenced by
the Kronos Partner Note. No Tioxide Partner Note may be endorsed, assigned
or otherwise transferred except to a Tioxide Group Member which transfer
must be concurrent with the assignment of the Tioxide Partner's Percentage
Interest to such Tioxide Group Member in accordance with the provisions of
Section 4.01 of this Agreement. No Kronos Partner Note may be endorsed,
assigned or otherwise transferred except to a Kronos Group Member which
transfer must be concurrent with the assignment of the Kronos Partner's
Percentage Interest to such Kronos Group Member in accordance with the
provisions of Section 4.01 of this Agreement. In no event shall any loan
pursuant to this Section 12.07 or any indebtedness evidenced by a Tioxide
Partner Note or a Kronos Partner Note be deemed to be a Convertible Loan or
Debt of the Joint Venture. In no event shall any loan pursuant to this
Section 12.07 or any indebtedness evidenced by a Tioxide Partner Note or a
Kronos Partner Note change either Partner's Percentage Interest, create,
confer or be the basis for any voting, management, control or similar
rights with respect to the Joint Venture or create, confer or be the basis
for the exercise of creditor rights by the Tioxide Partner or the Kronos
Partner or any other holder of such note, as the case may be, with respect
to or in any manner whatsoever that would impair or adversely affect the
rights of the other Partner."
SECTION 9. Amendment of Section 13.05. (a) Section 13.05 of the
Joint Venture Agreement is amended by adding at the end of clause first and in
front of the semi-colon the following phrase:
"(provided that the obligations of the Joint Venture incurred under
any Tioxide Partner Note or any Kronos Partner Note shall not be treated as
debt or liabilities of the Joint Venture)"
(b) Section 13.05 of the Joint Venture Agreement is amended by adding at
the end of clause second and in front of the semi-colon the following
phrase:
"(provided that all amounts so distributed shall be deemed to be
Partner's JV Interest Proceeds and shall be deemed applied to satisfy in
full the obligations of the Joint Venture under all Tioxide Partner Note(s)
if distributed to the Tioxide Partner or under all Kronos Partner Note(s)
if distributed to the Kronos Partner)"
(c) Section 13.05 of the Joint Venture Agreement is amended by adding at
the end of such Section a new sentence as follows:
"Whether or not any Property or proceeds are distributed to the
Partners under clause second above, upon distribution of all Property or
proceeds of the Joint Venture, if any, pursuant to this Section 13.05, all
Tioxide Partner Note(s) and Kronos Partner Note(s) shall be deemed
satisfied in full."
SECTION 10. Amendment of Section 13.06. Section 13.06 of the Joint
Venture Agreement is amended by adding at the end of such Section a new sentence
as follows: "Notwithstanding the foregoing or anything to the contrary in this
Agreement, in no event shall any obligations of the Joint Venture under any
Tioxide Partner Note or any Kronos Partner Note be treated as liabilities or
obligations and no amounts shall be set aside or withheld in respect of any
Tioxide Partner Note or Kronos Partner Note."
SECTION 11. Addition of Exhibit 4. A new Exhibit 4 is hereby added
to the Joint Venture Agreement which shall be in the form of Exhibit A to this
Amendment.
SECTION 12. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflicts of laws of such State.
SECTION 13. Counterparts. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
TIOXIDE AMERICAS INC.
By /s/ John Collingwood
Title: President & CEO
KRONOS LOUISIANA, INC.
By /s/ Susan E. Alderton
Title: Vice President
EXHIBIT 10.22
AMENDMENT NO. 1 TO OFFTAKE AGREEMENT
AMENDMENT dated as of December 20, 1995 between KRONOS LOUISIANA, INC.
("Kronos Louisiana") and LOUISIANA PIGMENT COMPANY, L.P. (the "Joint Venture").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into an Offtake
Agreement dated as of October 18, 1993 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to provide
for one or more prepayments of Tranche B Facility (as defined in the Agreement)
by Kronos Louisiana.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended hereby.
SECTION 2. Amendment of Article 1 of the Agreement. Article 1
(Definitions) of the Agreement is hereby amended by:
(a) adding the following new definitions in alphabetical order:
"Kronos Loan Costs" shall mean, for any period, the aggregate of
principal, interest and other payments payable during such period by the Joint
Venture under any Kronos Partner Note.
"Kronos Partner Note" shall have the meaning ascribed to such term in
Section 1.01 of the Joint Venture Agreement.
"Tioxide Partner Note" shall have the meaning ascribed to such term in
Section 1.01 of the Joint Venture Agreement.
(b) amending the first sentence of the definition of "Fixed Operating
Costs" by adding at the end thereof the phrase "or any Tioxide Partner Note or
any Kronos Partner Note".
(c) amending the last sentence of the definition of "Fixed Operating
Costs" by adding at the end thereof the phrase "and Kronos Loan Costs."
(d) amending the proviso beginning on the fifth line of the definition
of "Principal Repayment Amount" to read as follows:
"provided, however, such amount shall be calculated as if all payments
under this Agreement in respect of principal of the Tranche B Facility and all
proceeds of any Kronos Partner Note were applied to reduce such principal,
without regard to whether so applied."
SECTION 3. Amendment of Section 6.1 of the Agreement. Section 6.1 of
the Agreement is hereby amended by adding the phrase ", Kronos Loan Costs" in
front of the phrase "and Variable Costs" in clause (ii) of such Section.
SECTION 4. Amendment of Section 6.2 of the Agreement. Section 6.2 of
the Agreement is hereby amended by adding the following proviso at the end of
such section: "provided, however, that all payments with respect to Kronos Loan
Costs shall be made pursuant to Section 6.9 below".
SECTION 5. Amendment of Section 6.9 of the Agreement. A new section
6.9 is hereby added to the Agreement to read in its entirety as follows:
"6.9. Kronos Louisiana agrees to make full payment by wire
transfer to the Joint Venture of the Kronos Loan Costs payable on any
date on or before such date or, instead of making any such payments by
wire transfer, upon written notice to the Joint Venture and to Tioxide
Americas not less than three (3) business days prior to such date,
such amounts may be set-off on such date directly by Kronos Louisiana
and the indebtedness evidenced by the Kronos Partner Note(s) shall be
deemed satisfied as of such date to the extent of such set-off."
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
KRONOS LOUISIANA, INC.
By: /s/ Susan E. Alderton
Title: Vice President
LOUISIANA PIGMENT COMPANY, L.P.
By: KRONOS LOUISIANA, INC.,
its general partner
By: /s/ Susan E. Alderton
Title: Vice President
By: TIOXIDE AMERICAS INC.,
its general partner
By: /s/ John Collingwood
Title: President & CEO
EXHIBIT 10.24
AMENDMENT NO. 1 TO OFFTAKE AGREEMENT
AMENDMENT dated as of December 20, 1995 between TIOXIDE AMERICAS INC.
("Tioxide Americas") and LOUISIANA PIGMENT COMPANY, L.P. (the "Joint Venture").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into an Offtake
Agreement dated as of October 18, 1993 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to provide
for one or more prepayments of Tranche A Facility (as defined in the Agreement)
by Tioxide Americas.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended hereby.
SECTION 2. Amendment of Article 1 of the Agreement. Article 1
(Definitions) of the Agreement is hereby amended by:
(a) adding the following new definitions in alphabetical order:
"Kronos Partner Note" shall have the meaning ascribed to such term in
Section 1.01 of the Joint Venture Agreement.
"Tioxide Partner Note" shall have the meaning ascribed to such term in
Section 1.01 of the Joint Venture Agreement.
"Tioxide Loan Costs" shall mean, for any period, the aggregate of
principal, interest and other payments payable during such period by the Joint
Venture under any Tioxide Partner Note.
(b) amending the last sentence of the definition of "Fixed Operating
Costs" by adding at the end thereof the phrase "and Tioxide Loan Costs."
(c) amending the first sentence of the definition of "Fixed Operating
Costs" by adding at the end thereof the phrase "or any Tioxide Partner Note or
any Kronos Partner Note".
(d) amending the proviso beginning on the fifth line of the
definition of "Principal Repayment Amount" to read as follows:
"provided, however, such amount shall be calculated as if all payments
under this Agreement in respect of principal of the Tranche A Facility and all
proceeds of any Tioxide Partner Note were applied to reduce such principal,
without regard to whether so applied."
SECTION 3. Amendment of Section 6.1 of the Agreement. Section 6.1 of
the Agreement is hereby amended by adding the phrase ", Tioxide Loan Costs" in
front of the phrase "and Variable Costs" in clause (ii) of such Section.
SECTION 4. Amendment of Section 6.2 of the Agreement. Section 6.2 of
the Agreement is hereby amended by adding the following proviso at the end of
such section: "provided, however, that all payments made with respect to Tioxide
Loan Costs shall be made pursuant to Section 6.9 below".
SECTION 5. Amendment of Section 6.9 of the Agreement. A new section
6.9 is hereby added to the Agreement to read in its entirety as follows:
"6.9. Tioxide Americas agrees to make full payment by wire
transfer to the Joint Venture of the Tioxide Loan Costs payable on any
date on or before such date or, instead of making any such payments by
wire transfer, upon written notice to the Joint Venture and to Kronos
Louisiana not less than three (3) business days prior to such date,
such amounts may be set-off on such date directly by Tioxide Americas
and the indebtedness evidenced by the Tioxide Partner Note shall be
deemed satisfied as of such date to the extent of such set-off."
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
TIOXIDE AMERICAS INC.
By: /s/ John Collingwood
Title: President & CEO
LOUISIANA PIGMENT COMPANY, L.P.
By: KRONOS LOUISIANA, INC.,
its general partner
By: /s/ Susan E. Alderton
Title: Vice President
By: TIOXIDE AMERICAS INC.,
its general partner
By: /s/ John Collingwood
Title: President & CEO
EXHIBIT 10.37
INTERCORPORATE SERVICES AND REIMBURSEMENT AGREEMENT
INTERCORPORATE SERVICES AND REIMBURSEMENT AGREEMENT effective as of January
1, 1995, by and between Tremont Corporation ("Tremont"), a Delaware corporation,
and NL Industries, Inc. ("NL"), a New Jersey corporation.
WHEREAS, Tremont desires that NL provide certain services to Tremont, and
NL is willing to provide such services to Tremont, as provided in this
Agreement.
NOW, THEREFORE, in consideration of the premises and promises set forth
herein, the parties to this Agreement agree as follows:
1. SERVICES PROVIDED. NL will make available to Tremont and its
subsidiaries the following services (the "Services"):
a. certain administration and management services with respect to
Tremont's insurance and risk management needs, including:
(i) management of claims (including insured and self-insured workers
compensation and liability claims);
(ii) budgeting and related activities;
(iii) administration of Tremont's captive insurance company;
(iv) coordination of property loss control program; and
(v) administration of Tremont's insurance program, excluding all employee
benefit and welfare related programs.
b. certain administration and management services with respect to
Tremont's real properties and interests.
c. consultation and assistance in performing internal audit
projects, as requested.
2. FEES FOR SERVICES AND REIMBURSEMENT OF EXPENSES. Tremont shall pay to
NL an annual fee of $33,480 for the Services described in paragraphs 1.a and 1.b
above payable in monthly installments of $2,790 during the term of this
Agreement plus all out-of-pocket expenses incurred in the performance of the
Services. In addition, Tremont will pay to NL within thirty (30) days after
receipt of an invoice (such invoices to occur no more frequently than once per
month) an amount equal to the product of $600 multiplied by the number of days
devoted by NL's internal auditors to providing Services described in paragraph
1.c above times the number of internal auditors providing such Services plus all
out-of-pocket expenses incurred in the performance of the Services; provided,
however, in the event that Tremont determines, in its sole discretion, that it
no longer desires certain of the Services or NL determines, in its sole
discretion, that it no longer desires to provide certain of the Services, then
Tremont or NL, as appropriate, shall provide the other party with a ninety (90)
day prior written notice of cancellation describing the Services to be
terminated or discontinued and Tremont and NL during such ninety-day period
shall agree to a pro-rata reduction of the fees due hereunder for such
terminated or discontinued Services.
3. LIMITATION OF LIABILITY. In providing Services hereunder, NL shall
have a duty to act, and to cause its agents to act, in a reasonably prudent
manner, but neither NL nor any officer, director, employee or agent of NL shall
be liable to Tremont or its subsidiaries for any error of judgment or mistake of
law or for any loss incurred by Tremont or its subsidiaries in connection with
the matters to which this Agreement relates, except a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of NL or from
NL's reckless disregard of obligations and duties under this Agreement.
4. INDEMNIFICATION OF NL BY TREMONT. Tremont shall indemnify and hold
harmless NL, its subsidiaries and their respective officers, directors and
employees from and against any and all losses, liabilities, claims, damages,
costs and expenses (including reasonable attorneys' fees and other expenses of
litigation) to which such party may become subject arising out of the provision
by NL to Tremont and its subsidiaries of the Services, provided that such
indemnity shall not protect any such party against any liability to which such
person would otherwise by subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of obligations and duties hereunder.
5. FURTHER ASSURANCE. Each of the parties will make, execute,
acknowledge and deliver such other instruments and documents, and take all such
other actions, as the other party may reasonably request and as may reasonably
by required in order to effectuate the purposes of this Agreement and to carry
out the terms hereof.
6. NOTICES. All communications hereunder shall be in writing and shall
be addressed to:
If to NL: NL Industries, Inc.
16825 Northchase Drive, Suite 1200
Houston, Texas 77060
Attention: General Counsel
If to Tremont: Tremont Corporation
1999 Broadway, Suite 4300
Denver, Colorado 80202
Attention: General Counsel
or such other address as the parties shall have specified in writing.
7. AMENDMENT AND MODIFICATION. Neither this Agreement nor any item
hereof may be changed, waived, discharged or terminated other than by agreement
in writing signed by the parties hereto.
8. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto,
provided that this Agreement may not be assigned by either of the parties hereto
without the prior written consent of the other party.
9. MISCELLANEOUS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument. This Agreement shall be governed in all respects, including
validity, interpretation and affect, by the laws of the State of Texas.
10. TERM OF AGREEMENT. This Agreement shall be effective as of January 1,
1995, and shall remain in effect until December 31, 1995, subject to a renewal
by mutual written agreement for succeeding one-year terms commencing January 1,
1996. This Agreement may be terminated at any time by mutual consent of the
parties and by either party upon ninety (90) days prior written notice to the
other party. Upon such termination or upon the expiration of this Agreement,
the parties' rights and obligations hereunder shall cease and terminate except
with respect to rights and obligations arising on or prior to the date of
expiration or termination and the rights and obligations arising under paragraph
4 above.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
27th day of July, 1995, which Agreement will be deemed to be effective as of
January 1, 1995.
NL INDUSTRIES, INC.
By: /s/ Dennis G. Newkirk
Dennis G. Newkirk
Vice President
TREMONT CORPORATION
By: /s/ Mark A. Wallace
Mark A. Wallace
Vice President
LTH\2515
EXHIBIT 10.43
AGREEMENT TO DEFER BONUS PAYMENT
This AGREEMENT TO DEFER BONUS PAYMENT (this "Agreement") is made this
28 day of December 1995 between NL Industries, Inc., a New Jersey corporation
(the "Corporation") and Lawrence A. Wigdor ("Executive").
WHEREAS, Executive is a participant in the "Share in Performance" Plan
(the "SIP") established by the Corporation in 1989 to recognize and reward
employees whose performance has substantially contributed to the success of the
Corporation;
WHEREAS, The Corporation and Executive desire to defer payment of
$615,000 which Executive, in the absence of this Agreement, would be entitled to
receive under the SIP prior to March 15, 1996 with respect to services performed
by Executive for the Corporation during the 1995 calendar year (Executive's
"1995 SIP Bonus") until January 6, 1997 (or such earlier date as the
Corporation, in its sole discretion, may determine); and
WHEREAS, the Corporation and Lourdes T. Hernandez, as trustee, will
enter into an agreement (the "Trust Agreement") which establishes an irrevocable
trust (the "Trust") which is intended to hold and invest an amount of funds
equal to Executive's 1995 SIP Bonus until such bonus is paid to Executive
pursuant to this Agreement;
NOW, THEREFORE, in consideration of the agreements set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Executive's 1995 SIP Bonus shall be paid to Executive, or his
designated beneficiaries, upon the earliest to occur of (a) January 6, 1997, (b)
the termination of Executive's employment (including Executive's resignation)
for any reason, (c) Executive's death, or (d) such date as shall be determined
by the Compensation Committee of the Board of Directors (the "Committee") in its
sole discretion.
2. The amount of Executive's 1995 SIP Bonus shall accrue interest
beginning on the day after the date such amount would be payable under the SIP
in the absence of this Agreement (the "Original Payment Date") up to and
including the date such amount is paid to Executive pursuant to Paragraph 1
hereof (the "Deferred Payment Date") and the entire amount of such accrued
interest shall be paid to Executive, or his designated beneficiaries, on the
Deferred Payment Date. Such interest shall accrue at the rate of eight and
three-quarters percent (8.75%) per annum. Interest accrued pursuant to this
Paragraph 2 shall compound on a semi-annual basis and shall be computed for the
actual number of days elapsed on the basis of a year consisting of 365 or 366
days.
3. The Corporation on or before January 31, 1996, will enter into
the Trust Agreement and thereby establish the Trust. On the date that
Executive's 1995 SIP Bonus would be payable to Executive under the SIP in the
absence of this Agreement, the Corporation shall contribute an amount equal to
the amount of Executive's 1995 SIP Bonus to the Trust.
4. Subject to the terms of the Trust Agreement, the Corporation may
satisfy its payment obligations to Executive, or to his designated
beneficiaries, under this Agreement by (a) directing the Trustee to make such
payments from the principal and/or earnings of the Trust, (b) making such
payments directly from the Corporation's internal funds, or (c) by any
combination of (a) and (b), provided that all payments to Executive, or to his
designated beneficiaries, pursuant to this Agreement shall be made in
immediately available funds.
5. The Corporation shall withhold, either from Executive's 1995 SIP
Bonus in the year such amount is paid to Executive pursuant to Paragraph 1
hereof, or from any salary, bonus or other compensatory payment made to
Executive as the Corporation in it sole discretion may determine, such amounts
as is required by law to be withheld in 1996 or 1997, as the case may be,
pursuant to Code sectionsection 3101 and 3121(v)(2) or successor provisions
thereof.
6. Title to and beneficial ownership of any assets, whether cash or
investments and whether held by the Corporation or the Trust, which the
Corporation may earmark to meet its payment obligations to Executive under this
Agreement, shall at all times remain in the Corporation or the Trust, as
applicable, and Executive and his designated beneficiaries shall not have any
property interest whatsoever in any specific assets of the Corporation or the
Trust. Any right of the Executive or any of his designated beneficiaries to
receive payments from the Corporation under this Agreement shall be no greater
than the right of any unsecured general creditor of the Corporation.
7. The right of Executive or any other person to any payment under
this Agreement shall not be assigned, transferred, pledged or encumbered except
by will or by the laws of descent and distribution.
8. If the Committee shall find that any person to whom any payment
is payable under this Agreement is unable to care for his or her affairs because
of illness or accident, or is a minor, any payment due (unless a prior claim
therefor shall have been made by a duly appointed guardian or other legal
representative) may be paid to the spouse, a child, a parent, a brother or
sister, or the person or persons designated by the Executive in writing, or, in
the absence of any of the foregoing, to any one or more persons deemed by the
Committee to be appropriate. Any such payment shall be a complete discharge of
the liabilities of the Corporation under this Agreement.
9. Nothing contained herein shall be construed as conferring upon
Executive the right to continue in the employ of the Corporation as an executive
or in any other capacity.
10. This Agreement shall be binding upon and inure to the benefit of
the Corporation, its successors and assigns, and the Executive and his heirs,
executors, administrators, and legal representatives.
11. This Agreement contains the entire agreement of the between the
parties with respect to the subject matter hereof, and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, which may have related to the subject matter hereof in any way.
In the event of any conflict between the terms and provisions of this Agreement
and the terms and provisions of any employment or severance agreement entered
into by the parties hereto, the terms and provisions of this Agreement shall
govern.
12. This Agreement shall be governed by the 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.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
NL INDUSTRIES, INC.
By: /s/ Joe S. Compofelice
Its: Vice President and Chief
Financial Officer
EXECUTIVE
/s/ Lawrence A. Wigdor
Lawrence A. Wigdor
TRUST AGREEMENT
This Agreement is made effective as of the 31st day of January, 1996
by and between NL Industries, Inc. (the "Corporation") and Lourdes T. Hernandez
(the "Trustee");
WHEREAS, the Corporation and Lawrence A. Wigdor (the "Executive") have
entered into the Agreement to Defer Bonus Payment (the "Deferral Agreement")
attached hereto as Exhibit A;
WHEREAS, the Corporation has incurred or expects to incur liability
under the terms of such Deferral Agreement with respect to the Executive;
WHEREAS, the Corporation wishes to establish a trust (hereinafter
called the "Trust") and to contribute to the Trust assets that shall be held
therein, subject to the claims of the Corporation's creditors in the event of
the Corporation's Insolvency, as herein defined, until paid to the Executive and
his beneficiaries in such manner and at such times as specified in the Deferral
Agreement;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Deferral Agreement as an unfunded plan maintained for the purpose of providing
deferred compensation for a member of the select group of management or highly
compensated employees for purposes of Title I of the Employee Retirement Income
Security Act of 1974;
WHEREAS, it is the intention of the Corporation to make contributions
to the Trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Deferral Agreement;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF TRUST
(a) The Corporation hereby deposits with the Trustee in trust $100 or
such other amount as determined by the Corporation, which shall become the
principal of the Trust to be held, administered and disposed of by the Trustee
as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the
Corporation is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as
amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of the Corporation and shall be used
exclusively for the uses and purposes of the Executive and general creditors as
herein set forth. The Executive and his beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Deferral Agreement and this Trust Agreement shall be
mere unsecured contractual rights of the Executive and his beneficiaries against
the Corporation. Any assets held by the Trust will be subject to the claims of
the Corporation's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) The Corporation shall make additional deposits of cash or other
property in trust with the Trustee in accordance with the terms of the Deferral
Agreement to augment the principal to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement. Neither the Trustee nor the
Executive or any of his beneficiaries shall have any right to compel additional
deposits, except as may be required by the terms of the Deferral Agreement.
SECTION 2. PAYMENTS TO EXECUTIVE AND HIS BENEFICIARIES.
(a) The Corporation shall deliver to the Trustee a written schedule
(the "Payment Schedule") that indicates the amounts payable in respect of the
Executive (and his beneficiaries), that provides the amounts so payable, the
form in which such amount is to be paid, and the dates for payment of such
amounts. Except as otherwise provided herein, the Trustee shall make payments
to the Executive and his beneficiaries in accordance with such Payment Schedule.
The Corporation may amend or modify such Payment Schedule from time to time by
providing the Trustee with written notice of such amendments. The Trustee may
conclusively rely on such Payment Schedule. The Trustee shall make provision
for the reporting and withholding of any federal, state or local taxes that may
be required to be withheld with respect to the payment of benefits pursuant to
the terms of the Deferral Agreement and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by the Corporation.
(b) The entitlement of the Executive or his beneficiaries to benefits
under the Deferral Agreement shall be determined by the Corporation in
accordance with the terms of the Deferral Agreement, and any claim for such
benefits shall be considered and reviewed under the terms of the Deferral
Agreement.
(c) The Corporation may make payment of benefits directly to the
Executive or his beneficiaries as they become due under the terms of the
Deferral Agreement. The Corporation shall notify the Trustee of its decision to
make payment of benefits directly prior to the time amounts are payable to the
Executive or his beneficiaries. Such payments by the Corporation shall not
amend the Payment Schedule unless the Corporation specifically amends said
Schedule in writing. In addition, if the principal of the Trust, and any
earnings thereon, are not sufficient to make payments of benefits in accordance
with the Payment Schedule, the Corporation shall make the balance of each such
payment as it falls due. The Trustee shall notify the Corporation where
principal and earnings are not sufficient.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY WHEN THE CORPORATION IS INSOLVENT.
(a) The Trustee shall not make any payments to the Executive or his
beneficiaries if the Corporation is Insolvent. Notwithstanding any other
provision of this Trust Agreement, all determinations by the Trustee under this
Trust Agreement regarding whether the Corporation is solvent or Insolvent should
be based solely on the written representation to the Trustee from the
Corporation's Controller or Chief Financial Officer without independent
investigation by the Trustee. The Corporation shall be considered "Insolvent"
for purposes of this Trust Agreement if (i) the Corporation is unable to pay its
debts as they become due, or (ii) the Corporation is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of the Corporation under federal and state law as
set forth below.
(1) The Board of Directors, the Chief Executive Officer, the
Chief Financial Officer ("CFO") and the Controller of the Corporation shall have
the duty to inform the Trustee in writing of the Corporation's Insolvency with
respect to any payment date on the Payment Schedule. If a person claiming to be
a creditor of the Corporation alleges in writing to the Trustee that the
Corporation has become Insolvent, the Trustee shall determine whether the
Corporation is Insolvent; such determination shall be made based solely on
written representation from the Corporation's Controller or Chief Financial
Officer. Pending such determination, the Trustee shall not make any payments to
Executive or his beneficiaries.
(2) Unless the Trustee has received notice from the Corporation
that the Corporation is Insolvent, the Trustee shall have no duty at any time to
inquire whether the Corporation is Insolvent. The Trustee shall in all events
rely on such representation from the Corporation in making a determination
concerning the Corporation's solvency.
(3) In the event that the Corporation's Controller or Chief
Financial Officer has notified the Trustee in writing of the Corporation's
Insolvency, the Trustee shall not make any payments to the Executive or his
beneficiaries and shall hold the assets of the Trust for the benefit of the
Corporation's general creditors. Nothing in this Trust Agreement shall in any
way diminish or impair any rights of the Executive or his beneficiaries to
pursue their rights as general creditors of the Corporation with respect to
payments due under the Deferral Agreement or otherwise.
(4) The Trustee shall resume making payments to the Executive or
his beneficiaries in accordance with Section 2 of this Trust Agreement only
after the Trustee has determined that the Corporation is not Insolvent (or is no
longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues making payments from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to the -
Executive or his beneficiaries under the terms of the Deferral Agreement for the
period of such discontinuance, less the aggregate amount of any payments made to
the Executive or his beneficiaries by the Corporation in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4. PAYMENTS TO THE CORPORATION.
Except as provided in Section 3 hereof, the Corporation shall have no
right or power to direct the Trustee to return to the Corporation or to divert
to others any of the Trust assets before all payments have been made to the
Executive or his beneficiaries pursuant to the terms of the Deferral Agreement.
SECTION 5. INVESTMENT AUTHORITY.
In no event may the Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by the Corporation, other than a
de minimis amount held in common investment vehicles in which the Trustee
invests. All rights associated with assets of the Trust shall be exercised,
solely in accordance with the directions of the Corporation, by the Trustee or
the person designated by the Trustee, and shall in no event be exercisable by or
rest with the Executive.
SECTION 6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net
of expenses and taxes, shall be accumulated and reinvested.
SECTION 7. ACCOUNTING BY THE TRUSTEE.
The Trustee shall keep records of such investments, receipts,
disbursements, and all other transactions required to be made, as shall be
agreed upon in writing between the Corporation and the Trustee. Within 60 days
following the close of each calendar year and within 60 days after the removal
or resignation of the Trustee, the Trustee shall deliver to the Corporation a
written account of its administration of the Trust during such year or during
the period from the close of the last preceding year to the date of such removal
or resignation, setting forth all investments, receipts, disbursements and other
transactions effected by it, including a description of all securities and
investments purchased and sold with the cost or net proceeds of such purchases
or sales (accrued interest paid or receivable being shown separately), and
showing all cash, securities and other property held in the Trust at the end of
such year or as of the date of such removal or resignation, as the case may be.
In the event the Trustee delegates the obligaitons of this section to an employe
of the Corporation, such obligations shall be deemed to be fulfilled by the
Trustee.
SECTION 8. RESPONSIBILITY OF THE TRUSTEE.
(a) The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Corporation in connection,
directly or indirectly, with, the terms of the Deferral Agreement or this Trust.
In the event of a dispute between the Corporation and a party, the Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
(b) The Corporation agrees to indemnify and hold the Trustee harmless
from any and all costs, fees, expenses (including without limitation attorney's
fees and expenses), claims or lawsuits by any person or entity, liabilities or
obligations of any type or nature arising or related, directly or indirectly, to
the Deferral Agreement, this Trust or any action or failure to act by the
Trustee in connection in any way with any of the foregoing. Futhermore, if the
Trustee undertakes or defends any litigation arising in connection with this
Trust, the Corporation agrees to indemnify the Trustee against the Trustee's
costs, expenses and liabilities (including, without limitation, attorneys' fees
and expenses) relating thereto and to be solely liable for such payments. If
the Corporation does not pay such costs, expenses and liabilities in a
reasonably timely manner, the Trustee may obtain payment from the Trust.
(c) The Trustee may consult with legal counsel (who may also be
counsel for the Corporation generally) with respect to any of its duties or
obligations hereunder.
(d) The Trustee may hire and the Corporation may make available to
the Trustee agents, accountants, actuaries, investment advisors, financial
consultants or other professionals to assist it in performing any of its duties
or obligations hereunder. In addition, the Trustee may delegate any of its
duties under this Trust to employees and management of the Corporation and the
Trustee may conclusively rely on the reports of such employees and management
without further investigation.
(e) The Trustee shall have, without exclusion, all powers conferred
on the Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
the Trustee shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(f) Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall not have any power
that could give this Trust the objective of carrying on a business and dividing
the gains therefrom, within the meaning of section 301.7701-2 of the Procedure
and Administrative Regulations promulgated pursuant to the Internal Revenue
Code.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
The Corporation shall pay all administrative and Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) The Trustee may resign at any time by written notice to the
Corporation, which shall be effective 15 days after receipt of such notice
unless the Corporation and the Trustee agree otherwise.
(b) The Trustee may be removed by the Corporation on 15 days notice
to the Trustee or upon shorter notice accepted by the Trustee.
(c) Upon a Change of Control, as defined herein, the Trustee may not
be removed by the Corporation for 18 months.
(d) Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 30 days after receipt of notice
of resignation, removal or transfer, unless the Corporation extends the time
limit.
(e) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date of
resignation or removal under paragraphs (a) or (b) of this section. If no such
appointment has been made, the Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All expenses
of the Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
SECTION 11. APPOINTMENT OF SUCCESSOR.
(a) If the Trustee resigns or is removed in accordance with Section
10(a) or (b) hereof, the Corporation may appoint any third party, such as a bank
trust department or other party that may be granted corporate trustee powers
under state law, as a successor to replace the Trustee upon resignation or
removal. The appointment shall be effective when accepted in writing by the
new Trustee, who shall have all of the rights and powers of the former Trustee,
including ownership rights in the Trust assets. The former Trustee shall
execute any instrument necessary or reasonably requested by the Corporation or
the successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
the Corporation shall indemnify and defend the successor Trustee from any claim
or liability resulting from any action or inaction of any prior Trustee or from
any other past event, or any condition existing at the time it becomes successor
Trustee.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Corporation. Notwithstanding the foregoing, no
such amendment shall conflict with the terms of the Deferral Agreement or shall
make the Trust revocable.
(b) The Trust shall not terminate until the date on which the
Executive and his beneficiaries are no longer entitled to any payments pursuant
to the terms of the Deferral Agreement. Upon termination of the Trust any
assets remaining in the Trust shall be returned to the Corporation.
SECTION 13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) No amount payable to the Executive or any of his beneficiaries
under this Trust Agreement may be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of Texas.
(d) For purposes of this Trust, Change of Control shall mean the
purchase or other acquisition by any person, entity or group of persons, within
the meaning of section 13(d) or 14(d) of the Securities Exchange Act of 1934
("Act"), or any comparable successor provisions, of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Act) of 30 percent or more of
either the outstanding shares of common stock or the combined voting power of
the Corporation's then outstanding voting securities entitled to vote generally,
or the approval by the stockholders of the Corporation of a reorganization,
merger, or consolidation, in each case, with respect to which persons who were
stockholders of the Corporation immediately prior to such reorganization, merger
or consolidation do not, immediately thereafter, own more than 50 percent of the
combined voting power entitled to vote generally in the election of directors of
the reorganized, merged or consolidated Corporation's then outstanding
securities, or a liquidation or dissolution of the Corporation or of the sale of
all or substantially all of the Corporation's assets.
SECTION 14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be January 31, 1996.
* * * * *
EXECUTED on the dates of the respective acknowledgments hereto, to be
effective as of the 31st day of January, 1996.
- TRUSTOR -
- TRUSTEE -
THE STATE OF TEXAS
COUNTY OF ________
This instrument was acknowledged before me on the _____ day of
_______________, 19___, by _________________________.
Notary Public in and for
the State of T E X A S
My Commission Expires:
_____________________
EXHIBIT 21.1 SUBSIDIARIES OF THE REGISTRANT
<TABLE>
<CAPTION>
Jurisdiction of
incorporation % of Voting
NAME OF CORPORATION or organization Securities Held
<S> <C> <C>
Kronos, Inc. Delaware 100
Kronos (US) Inc. Delaware 100
Kronos International, Inc. Delaware 100
NL Industries (Deutschland) GmbH Germany 100
Kronos Titan-GmbH Germany 100
Unterstutzungskasse Titan GmbH Germany 100
Kronos Chemie-GmbH Germany 100
Kronos Europe S.A./N.V. Belgium 100
Kronos World Services S.A./N.V. Belgium 100
Kronos B.V. Holland 100
Kronos Canada, Inc. Canada 100
2927527 Canada Inc. Canada 100
2969157 Canada Inc. Canada 100
Societe Industrielle Du Titane, S.A. France 93
Kronos Norge A/S Norway 100
Kronos Titan A/S Norway 100
Titania A/S Norway 100
The Jossingfjord Manufacturing
Company A/S Norway 100
Kronos Limited United Kingdom 100
Kronos Louisiana, Inc. Delaware 100
Louisiana Pigment Company, L.P. Delaware 50*
Rheox, Inc. Delaware 100
Rheox International, Inc. Delaware 100
Bentone Sud, S.A. France 86
Rheox GmbH Germany 100
Bentone-Chemie GmbH Germany 70
Rheox Limited United Kingdom 100
Abbey Chemicals Limited United Kingdom 70
Rheox Europe S.A./N.V. Belgium 100
RK Export, Inc. Barbados 100
Enenco, Inc. New York 50*
</TABLE>
* Unconsolidated joint venture accounted for by the equity method.
EXHIBIT 21.1 SUBSIDIARIES OF THE REGISTRANT (Continued)
<TABLE>
<CAPTION>
Jurisdiction of
incorporation % of Voting
NAME OF CORPORATION or organization Securities Held
<S> <C> <C>
Other:
National Lead Company New Jersey 100
NL Industries (USA), Inc. Texas 100
NLO, Inc. Ohio 100
Salem Lead Company Massachusetts 100
Sayre & Fisher Land Company New Jersey 100
153506 Canada Inc. Canada 100
The 1230 Corporation California 100
United Lead Company New Jersey 100
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the:
(i) Registration Statement No. 2-98713 on Form S-8 and related
Prospectus with respect to the 1985 Long Term Performance
Incentive Plan of NL Industries, Inc.; and
(ii) Registration Statement No. 33-25913 on Form S-8 and related
Prospectus with respect to the Savings Plan for Employees of NL
Industries, Inc.; and
(iii) Registration Statement No. 33-29287 on Form S-8 and related
Prospectus with respect to the 1989 Long Term Performance
Incentive Plan of NL Industries, Inc.; and
(iv) Registration Statement No. 33-48145 on Form S-8 and related
Prospectus with respect to the NL Industries, Inc. 1992 Non-
Employee Directors Stock Option Plan.
of our report which is dated February 8, 1996 on our audits of the consolidated
financial statements and financial statement schedules of NL Industries, Inc. as
of December 31, 1994 and 1995, and for each of the three years in the period
ended December 31, 1995, which report is included in this Annual Report on Form
10-K.
COOPERS & LYBRAND L.L.P.
Houston, Texas
March 1, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM NL
INDUSTRIES INC.'S CONSOLIDATED FINANACIAL STATEMENTS FOR THE TWELVE MONTHS
ENDED DECEMBER 31, 1995, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH CONSOLIDATED FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<CASH> 141,333
<SECURITIES> 0
<RECEIVABLES> 133,264
<ALLOWANCES> 4,039
<INVENTORY> 251,630
<CURRENT-ASSETS> 551,071
<PP&E> 946,086
<DEPRECIATION> 486,870
<TOTAL-ASSETS> 1,271,653
<CURRENT-LIABILITIES> 302,425
<BONDS> 740,334
8,355
0
<COMMON> 0
<OTHER-SE> (217,776)
<TOTAL-LIABILITY-AND-EQUITY> 1,271,653
<SALES> 1,023,939
<TOTAL-REVENUES> 1,023,939
<CGS> 676,184
<TOTAL-COSTS> 676,184
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 289
<INTEREST-EXPENSE> 81,617
<INCOME-PRETAX> 98,902
<INCOME-TAX> (12,671)
<INCOME-CONTINUING> 85,609
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 85,609
<EPS-PRIMARY> 1.66
<EPS-DILUTED> 1.66
</TABLE>
