SHARED SERVICES AGREEMENT
SHARED SERVICES AGREEMENT, dated as of August 29, 1996,
1996, by and between ADVANCED NMR SYSTEMS, INC., a Delaware
corporation ("ANMR"), having offices at 00 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, and Advanced Mammography
Systems, Inc., a Delaware corporation ("AMS"), having offices at
00 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, ANMR and AMS are parties to that certain
Shared Services Agreement, dated October 28, 1992 (the "Original
Agreement"), pursuant to which AMS engaged ANMR to provide
certain administrative services;
WHEREAS, ANMR has developed more accurate systems for
allocating expenses among ANMR and AMS and certain other changes
have occurred in the relationship between ANMR and AMS since the
Original Agreement was entered into;
WHEREAS, ANMR and AMS continue to share senior
management, outside services, facilities, administrative
employees and other employees;
WHEREAS, ANMR and AMS desire to terminate the Original
Agreement effective upon the execution of this Agreement; and
WHEREAS, ANMR and AMS desire to set forth in this
Agreement a more accurate method of allocating the services that
are shared between each company to be effective retroactively as
of October 1, 1996.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein set forth the parties hereto
agree as follows:
1. TERMINATION OF ORIGINAL AGREEMENT. The Original
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Agreement shall terminate immediately and automatically upon the
execution of this Agreement by ANMR and AMS.
2. SHARED SERVICES. During the term of this
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Agreement, ANMR and AMS shall provide to each other, as
indicated, the following services:
2.1 Senior Management. The Designated Executive
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Officers (as hereinafter defined) shall be employed by both ANMR
and AMS and shall be available to perform their respective duties
as executive officers of each company and to devote as much time
as may be reasonably necessary to the business and affairs of
each Company. Each of ANMR and AMS shall pay fifty percent (50%)
of the aggregate annual cash compensation of each of the
Designated Executive Officers in accordance with the respective
employment agreements of each of the Designated Executive
Officers. The percentage amount of the annual cash compensation
payable by either of ANMR or AMS may be adjusted in the event
that the President and Chief Financial Officer of each company
determine that circumstances warrant such an adjustment. As used
in this Agreement, the term "Designated Executive Officers" means
the following persons who act as executive officers of both ANMR
and AMS: Xxxx Xxxxxx, Xxxxxxx Xxxx and Xxxxxxx Xxxxx.
2.2 Administrative Services. The Administrative
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Personnel (as hereinafter defined) shall be employed by both ANMR
and AMS and shall be available to perform their respective duties
as Administrative Personnel of each company and to devote as much
time as may be reasonably necessary to the business and affairs
of each Company. Each of ANMR and AMS shall pay fifty percent
(50%) of the aggregate annual cash compensation of the
Administrative Personnel. The percentage amount of the annual
cash compensation payable by either of ANMR or AMS may be
adjusted in the event that the President and Chief Financial
Officer of each company determine that circumstances warrant such
an adjustment. As used in this Agreement, the term
"Administrative Personnel" means personnel of ANMR and AMS who
perform secretarial, clerical administrative and in house
accounting services.
2.3 Facilities. ANMR shall permit AMS to share the
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Facilities (as hereinafter defined). AMS shall reimburse ANMR
for expenses incurred by ANMR that relate to AMS' use of the
Facilities, including rent, utilities, maintenance charges, and
insurance. The reimbursement amount shall be determined by
dividing the total amount of expenses for the Facilities by a
fraction, the numerator of which is the number square feet of the
Facilities occupied by AMS personnel and the denominator of which
is the total number of square feet of the Facilities. AMS shall
reimburse ANMR for its allocated portion of the expenses of the
Facilities upon the receipt by AMS of an invoice from ANMR for
such expenses. As used in this Agreement, the term "Facilities"
means the offices of ANMR at (i) Xxx Xxxxxxxxx Xxxxx, Xxxx Xxx,
Xxx Xxxxxx 00000 and (ii) 00 Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000.
2.4 Miscellaneous Services and Resources. ANMR shall
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permit AMS to utilize other supplies, resources and equipment of
ANMR as required by AMS and ANMR. The President and the Chief
Financial Officer of each of ANMR and AMS shall use their best
efforts to allocate the cost of such supplies, resources and
equipment to each of ANMR and AMS. AMS shall reimburse ANMR for
its allocated portion of such cost upon the receipt by AMS of an
invoice from ANMR for such costs.
2.5 Outside Services. ANMR and AMS shall request all
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outside consultants and independent contractors to provide each
company with a separate invoice that allocates expenses
associated with services performed by such consultants and
independent contractors on behalf of either ANMR or AMS. To the
extent that any invoices received by either of ANMR or AMS do not
allocate expenses between ANMR and AMS or do not allocate such
expenses appropriately, the President and Chief Financial Officer
of each company shall determine an appropriate allocation. ANMR
and AMS agree to reimburse each other to the extent that any
invoices for outside services do not accurately allocate expenses
for such services. ANMR and AMS agree to reimburse each other
upon the receipt of an invoice for such expenses.
3. TERM.
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3.1 The term of this Agreement shall commence
retroactively as of October 1, 1996 and shall continue through
May 31, 2001, unless earlier terminated or extended in accordance
with the provisions of this Section 3.
3.2 The term of this Agreement shall be automatically
extended for two additional one-year periods unless written
notice of termination from either party is given at least 90 days
prior to the scheduled expiration thereof.
3.3 This Agreement may be terminated and any one or
more of the services may be reduced in scope or eliminated in its
entirety, at any time during the term hereof upon 90 days' prior
written notice to the other party.
4. OBLIGATIONS AND RELATIONSHIP. ANMR shall at all
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times act as an independent contractor and, notwithstanding
anything contained herein, the relationship established hereunder
between the parties shall not be construed as a partnership,
joint venture or other form of joint enterprise. Except as
expressly authorized by a party hereto, no party shall be
authorized to make any representations or to create or assume any
obligation or liability in respect or on behalf of the other
party, and this Agreement shall not be construed as constituting
either party as the agent of the other party.
5. LIMITED LIABILITY; INDEMNIFICATION
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5.1 ANMR shall not be liable to AMS for any loss,
claim, expense or damage, including indirect, special,
consequential or exemplary damages, for any act or omission
performed or omitted by it hereunder so long as its act or
omission does not constitute fraud, bad faith or gross
negligence. ANMR shall not be liable to AMS for the consequences
of any failure or delay in performing any services provided such
failure shall be caused by labor disputes, strikes or other
events or circumstances beyond ANMR's control and provided
further, ANMR shall have provided prompt notice to AMS of its
inability to perform services and the reason therefor.
5.2 In any action, suit or proceeding (other than an
action by or in the right of ANMR or AMS, as the case may be) to
which either ANMR or AMS or any of their respective agents or
employees performing services hereunder (the "Indemnitee") was or
is a party by reason of his or its performance or non-performance
of services, either ANMR or AMS, as the case may be, shall
indemnify the Indemnitee and hold the Indemnitee harmless from
and against expenses, judgments, fines and amounts paid (with the
consent of the other party) in settlement actually and reasonably
incurred by the Indemnitee in connection therewith if the
Indemnitee acted in good faith and provided that the Indemnitee's
conduct does not constitute gross negligence, fraud or
intentional misconduct.
6. CONFIDENTIALITY. Any and all information obtained
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by either party in connection with the services contemplated by
this Agreement shall be held in the strictest confidence and not
disclosed to any other person without the written consent of the
other party.
7. NOTICES. All notices and other
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communications permitted or required hereunder shall be in
writing and shall be deemed given when delivered by hand to an
officer of either party.
8. BINDING EFFECT. This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit
of the parties and their respective successors.
9. NO THIRD PARTY BENEFICIARIES. This Agreement is
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solely for the benefit of the parties hereto and shall not confer
upon third parties any remedy, claim, cause or action or other
right in addition to those existing without reference to this
Agreement.
10. ENTIRE AGREEMENT. This Agreement constitutes the
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entire agreement between the parties with respect to the subject
matters covered and hereby and supersedes and prior agreement or
understanding between the parties with respect to those matters.
11. ASSIGNMENT; AMENDMENT; WAIVER. This Agreement is
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not assignable. Neither the rights nor the duties arising
hereunder may be assigned or delegated. This Agreement may not
be amended nor may any rights hereunder be waived except by an
instrument in writing signed by the party sought to be charged
with the amendment or waiver. The failure of a party to insist
upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that
term or any other term of this Agreement.
12. GOVERNING LAW. This Agreement shall be construed
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in accordance with and governed by the laws of the Commonwealth
of Massachusetts, without giving effect to the provisions,
policies or principles thereof relating to choice or conflict of
laws.
13. HEADINGS. The section and other headings
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contained in this Agreement are for references purposes only and
shall not effect the meaning or interpretation of this Agreement.
[signature page follows]
IN WITNESS WHEREOF, the parties have caused in this
Agreement to be duly executed as of the date and year first above
written.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxx
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Name:Xxxxxxx Xxxx
Title: President
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Chairman
