Exhibit 10.52
OVERHEAD SUPPORT & RESOURCE SHARING AGREEMENT
This Overhead Support & Resource Sharing Agreement ("Agreement") is
made by and between Xxxx North America, Inc., a Georgia corporation, ("WNA") and
Spectrum Managed Care of California, Inc., a Delaware corporation ("Spectrum-CA)
and made effective as of January 13, 2001 (the "Effective Date") with respect to
the below Recitals:
RECITALS
WHEREAS, WNA is a wholly-owned subsidiary of Xxxx North America
Holding, Inc., a California corporation ("WNAH"); and
WHEREAS, in March 2000 WNAH purchased approximately 79% of the
outstanding capital stock of Anchor Pacific Underwriters, Inc., a Delaware
corporation ("APU"); and
WHEREAS, Spectrum-CA is a wholly-owned subsidiary of APU; and
WHEREAS, WNA is engaged in the business of performing loss claims
administration and adjusting services with a national information systems and
communications infrastructure and centralized departments performing accounting,
human resources, legal, information technology, sales and marketing, treasury,
regulatory compliance, risk management, executive and other corporate
administrative functions; and
WHEREAS, the operating results of WNA and Spectrum-CA are reported on a
consolidated basis by WNAH as a result of its direct and indirect ownership
interests in the parties; and
WHEREAS, Spectrum-CA and WNA entered into an agreement as of the
Effective Date for WNA to provide certain overhead support services to
Spectrum-CA and for the parties to share WNA's overhead and infrastructure
resources on an equitable basis for their mutual benefit; and
WHEREAS, the parties desire to more fully memorialize their agreements
and understandings concerning these matters by the execution and delivery of
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, WNA and Spectrum-CA hereby agree as follows:
1. Overhead Support Services. WNA agrees to provide Spectrum-CA the
overhead support services listed on Exhibit A (the "Support Services") attached
hereto and incorporated herein by reference and as may be amended from time to
time upon the mutual agreement of the parties during the Term of this Agreement
as defined in Section 4 herein. WNA agrees to perform all Support Services in
same manner and employing the same care and skill as employed in the performance
of such services on its own behalf.
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1.1 Ownership. Spectrum-CA shall at all times retain all rights
and ownership interests in all data, information, materials and other
work product relating to the business of Spectrum-CA developed by the
parties, mutually or separately, through the performance of such
Support Services hereunder.
2. Resource Sharing. WNA agrees to permit Spectrum-CA access to and the
right to use the infrastructure resources and assets described on Exhibit B (the
"Shared Resources") attached hereto and incorporated herein by reference and as
may be amended from time to time upon the mutual agreement of the parties during
the Term of this Agreement as defined in Section 4 herein.
2.1 Ownership. WNA shall retain at all ownership, possessory,
occupancy, license and use rights in any and all tangible and
intangible assets constituting the Shared Resources to which
Spectrum-CA is permitted access and the right to use during the Term of
this Agreement. WNA does not grant Spectrum-CA any right in any such
Shared Resources that will survive the Term of this Agreement.
3. No Assumption of Liabilities. Except for the payment of the Support
Charges described in Section 4 herein and as may otherwise be expressly stated
herein, Spectrum-CA shall not assume nor he held responsible for the payment or
satisfaction of any portion of the costs incurred by WNA in connection with the
ownership, lease, license, use, maintenance, or operation of the Shared
Resources or WNA's costs and expenses incurred to provide the Support Services.
4. Consideration Payable to WNA.
4.1 Support Charges. Spectrum-CA shall pay WNA the sums
specified in Exhibit C attached hereto ("Support Charges") in exchange
for the Support Services provided by WNA and the right to access, share
and use the Shared Resources. Exhibit C shall be incorporated by
reference into this Agreement and may be amended from time to time upon
the mutual agreement of the parties.
4.2 Payment. Spectrum-CA will remit the sums stated on Exhibit C
to WNA within thirty (30) days after the end of each calendar month
following the Effective Date.
4.3 Demand Loans. The amount of any Support Charges remaining
unpaid after their due date shall constitute a demand loan from WNA to
Spectrum-CA and shall be reflected as such on the financial books and
records of WNA and Spectrum-CA. Such loans shall bear no interest until
written demand for payment is received from WNA. ("Demand Date"). The
amount of any such outstanding demand loan ("Demand Loan") shall bear
interest at the annual rate of eight percent (8%), compounded annually,
from the Demand Date until paid.
4.4 Promissory Xxxxx.Xx WNA's election, Spectrum-CA agrees to
execute and deliver a promissory note evidencing the debt containing
terms and conditions reasonably acceptable to WNA and its legal
counsel.
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5. Term of Agreement This Agreement shall be deemed effective as of the
Effective Date defined above and shall remain in effect until December 31, 2002,
unless terminated earlier as provided herein (the "Term").
5.1 Termination. This Agreement shall be terminated without cause:
(a) immediately upon mutual written agreement of the parties; or
(b) by WNA upon three (3) months written notice to Spectrum-CA;
and
(c) by Spectrum-CA upon ten (10) days written notice to WNA.
5.2 Termination Upon Default. The breach by either party of a
material term or condition of this Agreement shall constitute an event
of default ("Event of Default"). If such Event of Default is not cured
by the defaulting party within ten (10) days after delivery of written
notice describing the Event of Default, then the non-defaulting party
shall be entitled, at its sole election, to terminate this Agreement
without further notice.
5.3 Termination by Reason of Bankruptcy. In the event of the
occurrence of any of the following events, each party shall have the
right to terminate this Agreement immediately upon providing written
notice to the other party:
(a) the commencement of any bankruptcy, insolvency,
reorganization, dissolution, liquidation of debt,
receivership or conservatorship proceeding or other similar
proceeding by or against the other party; or
(b) the suspension or termination of business or dissolution of,
or the appointment of a receiver, conservator, trustee or
similar officer to take charge of, a substantial part of the
property of the other party.
5.5 Survival of Certain Obligations. The expiration or earlier
termination of this Agreement for any reason shall not terminate
Spectrum-CA's indemnification obligations described in Section 6 below.
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6. Indemnification of WNA. Spectrum-CA agrees to indemnify WNA and its
directors, officers, employees, agents, parent corporation, and affiliates ("WNA
Indemnified Parties") and hold each of them harmless from and against and defend
against, any and all claims, damages, losses, penalties, expenses, costs and/or
liabilities (including attorneys' fees and court costs) that are caused by or
result from any alleged breach by WNA of any covenants provided herein or any
alleged wilfull or negligent act or omission of WNA in the performance of the
Support Services or any claim arising out of or related to Spectrum-CA's use,
occupancy, possession, or sharing of the Shared Resources hereunder to the
extent they are not caused by or the result of the willful misconduct or gross
negligence of WNA. Spectrum-CA's obligations to indemnify the WNA Indemnified
Parties will survive the expiration or termination of this Agreement by any
party for any reason.
7. Confidential Information.
7.1 Confidentiality Covenants. It is understood that the performance
by WNA of the Support Services and the use of the Shared Resources by
the parties could expose the parties to the private or confidential
information of the others. Each party agrees to use the degree of care
it exercises to protect its own private or confidential information to
keep, and to have its employees and agents keep, any and all private or
confidential information of the other parties strictly confidential and
to use such information only for the purpose providing the Support
Services or as necessary to use the Shared Resources. Each party
acknowledges and agrees that, in the event of a breach or threatened
breach by it of the provisions of this Section, the other parties will
have no adequate remedy in money or damages and, accordingly, shall be
entitled to an injunction against such breach. However, no
specification in this Agreement of a specific legal or equitable remedy
shall be construed as a waiver or prohibition against any other legal
or equitable remedies in the event of a breach of any provision of this
Agreement. Neither party shall provide any private or confidential
information of the other party to third parties pursuant to an
administrative or judicial subpoena, summons, search warrant, or other
governmental order without providing prior notice to such other party,
unless otherwise provided by law or court order.
7.2 Limit of Confidentiality Obligations. The parties' obligations
and agreements under Section 6.1 hereof shall not apply to any
information supplied that:
(a) was known to the receiving party prior to the disclosure by
the other; or
(b) is or becomes generally available to the public other than
by breach of this Agreement; or
(c) otherwise becomes lawfully available on a non-confidential
basis from a third party who is not under an obligation of
confidence to the other party.
8. Miscellaneous.
8.1 Assignment. WNA may not assign this Agreement in whole or in
part
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without the other party's prior written consent, which consent may be
withheld for any reason. Any attempted assignment without such consent
shall be void.
8.2 Waiver. No term or provision hereof will be deemed waived,
and no variation of terms or provisions hereof shall be deemed
consented to, unless such waiver or consent shall be in writing and
signed by the party against whom such waiver or consent is sought to be
enforced. Any delay, waiver, or omission by any party to exercise any
right or power arising from any breach or default of the other party in
any of the terms, provisions, or covenants of this Agreement shall not
be construed to be a waiver by such provider of any subsequent breach
or default of the same or other terms, provisions, or covenants on the
part of the other party.
8.3 Governing Law. This Agreement and all rights and
obligations hereunder shall be governed by and construed in accordance with the
laws of the State of California except where USA federal law is applicable.
8.4 Headings Not Controlling. Headings used in this Agreement
are for reference purposes only and shall not be deemed a part of this
Agreement.
8.5 Force Majeure. Neither party shall be liable for a delay
in performance or failure to perform any obligation under this Agreement to the
extent such delay is due to causes beyond the control of that party and is
without its fault or negligence, including, but not limited to, acts of God,
labor disputes, governmental regulations or orders, civil disturbance, war
conditions, fires, or due to a failure by the other party to satisfy its
obligations under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers effective as of January 13, 2001.
XXXX NORTH AMERICA, INC.
By:
Title:
SPECTRUM MANAGED CARE OF CALIFORNIA, INC.
By:
Title:
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EXHIBIT A
OVERHEAD SUPPORT SERVICES
WNA shall perform the following overhead support services during the term of
this Agreement:
. Executive Management - WNA to authorize and direct its executive officer
employees, including its CEO, CFO, Executive Vice President, Senior and
other Vice Presidents, to devote such portions of their business time and
efforts as mutually deemed necessary and appropriate for the performance
of executive management services on behalf of Spectrum-CA.
. Accounting - Transition, centralize and fulfill such accounting
department functions as may be requested by Spectrum-CA from time to
time, including but not limited to, compilation of financial data from
various accounting systems; preparation of periodic financial statements
and management reports; centralization of accounts receivable and
accounts payable functions; tax return preparation, filing and annual
reporting functions, trust accounting and reconciliation; maintenance of
general ledger and fixed assets records, and process equipment lease
applications, etc.
. Human Resources - Fulfill agreed upon human resource functions except
recruitment of professional employees. WNA to provide the services of an
adequately staffed Human Resource department to perform functions to
include, payroll and benefits enrollment and administration; 401(K)
profit sharing plan administration as authorized under plan documents;
employment commencement and termination consulting and administration.
. Communications and Information Technology - Provide services of
information technology and communications staff Spectrum-CA including
remote technical assistance for email, work station, business
applications, and wide-area network maintenance. Services to include
support for voice and data communications line installation and
maintenance.
. Sales & Marketing - Provide certain centralized sales and marketing
services to Spectrum-CA through WNA's staff such as design and
development of promotional marketing materials, joint use of trade show
booths, procurement of printed materials and cross-selling by WNA sales
personnel of Spectrum-CA services to WNA customers and customers of its
affiliates.
. Legal & Regulatory Compliance - Perform litigation management, general
legal services, licensing, entity qualification.
. Insurance & Risk Management - Prepare insurance and bond applications and
maintain all appropriate insurance coverage.
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EXHIBIT B
.
SHARED RESOURCES
WNA shall permit Spectrum-CA to access and use the following resources:
. Wide-area data network infrastructure, including hardware, systems
software and data lines
. Telecommunications networks and service contract benefits
. Systems support software applications and network software licenses
. Desktop, enterprise, and server application software licenses not
otherwise restricted by their terms
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EXHIBIT C
SUPPORT CHARGES - EFFECTIVE JANUARY 1, 2002
In exchange for the Support Services and the use of the Shared Resources,
Spectrum-CA will pay WNA the following consideration:
Percentage of Revenue Fee - An amount equal to 15% of the net revenue of
Spectrum-CA each month during the Term of this Agreement.
Direct Cost Responsibility & Reimbursement - In addition to the
Percentage of Revenue Fee, to the extent direct costs and expenses are
solely attributable to Spectrum-CA (such as transportation expenses for
WNA personnel to travel to a Spectrum-CA office to perform services) such
costs shall be born by Spectrum-CA and it shall pay such costs directly
or reimburse WNA for such costs upon demand. Such costs remaining unpaid
following demand for payment shall constitute demand loans by WNA as
described in the Agreement.
XXXX NORTH AMERICA, INC.
By:
Title:
SPECTRUM MANAGED CARE OF CALIFORNIA, INC.
By:
Title:
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