EXHIBIT 10.34
SUPPORT AGREEMENT
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AGREEMENT made this 27th day of April, 1995, by and between
Roche Biomedical Laboratories, Inc. a New Jersey Corporation ("RBL")
and Xxxxxxxx-Xx Xxxxx Inc., a New Jersey Corporation ("Roche").
WITNESSETH:
WHEREAS, RBL, National Health Laboratories Holdings Inc.
("NHL"), HLR Holdings Inc. ("HLR") and (for the purposes specified
therein) Roche have entered into an Agreement and Plan of Merger
dated as of December 13, 1994 (the "Merger Agreement") providing
for, among other things, the merger of RBL with and into NHL (the
"Merger"); and
WHEREAS, NHL has mailed to its stockholders a Proxy
Statement/Prospectus in connection with the solicitation of proxies
by the Board of Directors of NHL for use at the special meeting of
stockholders of NHL to be held on April 28, 1995 (the "NHL Meeting")
to consider and vote upon, among other things, the approval and
adoption of the Merger Agreement; and
WHEREAS, upon the approval by the NHL stockholders of the
Merger Agreement, the Merger is anticipated to be consummated on or
about April 28, 1995 (the "Effective Time"); and
WHEREAS, Roche, as an indirect parent of RBL, has been
providing certain general and administrative support services to RBL
and the parties hereto wish to enter into this Support Agreement
pursuant to which Roche shall continue to provide certain of these
support services to RBL (the "Support Services") following the
Effective Time of the Merger; and
WHEREAS, the purpose of this Support Agreement is to further
define the terms and conditions under which such Support Services
shall be provided.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, and agreements contained herein, and other
good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. General Obligations
X. Xxxxx. Xxxxx agrees to use reasonable efforts to
provide the services set forth below with the same degree
of care and diligence that it applies to meet its own
internal needs for similar services and at the same
general level of support as is currently being provided to
RBL. Roche is not in the business of providing such
services to third parties and Roche's only obligations
hereunder shall be to use reasonable efforts to meet RBL's
needs in the same manner and with the same priority as it
uses its reasonable efforts to meet its own internal
needs.
B. RBL. RBL agrees to pay Roche the applicable amounts
set forth below for the various Support Services provided
under this Support Agreement. RBL agrees further that it
shall be solely responsible for its operations and that by
agreeing to provide support assistance Roche shall not
assume any responsibility to RBL or any third party for
any claims or damages arising, or alleged to arise, in
connection with such operations except if such claims or
damages are caused by Roche's breach or negligent failure
to fulfill its obligations hereunder. Provided, however,
in no event shall Roche be responsible for consequential
or special damages. Roche's exposure in connection with a
breach or alleged breach of this agreement to RBL and/or
any third party shall be limited to the amounts paid under
this Agreement to Roche by RBL.
C. Other Obligations of Roche. Pursuant to the Merger
Agreement and other agreements related thereto, Roche has
agreed to provide, directly or indirectly, certain
assistance and support to RBL following the Effective Time
of the Merger. Such support includes, but is not limited
to, cooperation on tax matters. The parties hereto agree
that this Support Agreement is in addition to such matters
and is not intended to restrict or otherwise affect any
such obligations of Roche.
2. Interim Trust Fund and Pension and Savings Plan
Administration
X. Xxxxx. Xxxxx agrees to provide interim trust fund and
pension and savings plan administration services for RBL
from the Effective Time of the Merger until such time as RBL
has the capability to assume such services. It is currently
anticipated that RBL shall be able to assume such services
no later than the fourth quarter of 1995. These services
shall include, but not be limited to, (i) administering the
RBL pension trust fund, (ii) administering the RBL pension
and savings plan, and (iii) training RBL personnel in all
aspects of the trust fund and pension and savings plan
administrative services currently being performed by Roche.
Roche and RBL agree that when the assets in the RBL pension
trust fund are transferred, the value of the assets
transferred shall be as of the Effective Time of the Merger,
plus contributions and any gain and minus disbursements and
any loss, from the Effective Time of the Merger until the
transfer.
B. Charges. The charges for the services set forth in
Section 2(A) above shall be as set forth in Section 7(N).
Any contributions required by law to be made to the
pension trust fund on RBL's behalf shall be prefunded by
wire transfer by RBL.
3. Interim Executive Compensation, Payroll Administration, and
Human Resource System Administration
X. Xxxxx. Xxxxx agrees to provide interim executive
compensation and payroll administration services for RBL
from the Effective Time of the Merger until such time as
RBL has the capability to assume such services or until
such time as NHL is able to assume such services. These
services shall include, but not be limited to, (i)
processing payrolls, commissions and other bonus runs,
including tax and other employee withholdings, and direct
deposit and check distributions (all of which shall be
prefunded by RBL by way of wire transfer), (ii)
administering the 401(K) Plan transmissions and
discrimination testing, (iii) processing 1995 W-2's, (iv)
administering United Way contributions, (v) reconciling
payroll bank accounts, (vi) maintaining and administering
the RBL human resource system, as well as assisting RBL in
converting its human resource system to the NHL human
resource system, and (vii) other such services currently
being provided. It is currently anticipated that RBL or
NHL shall be able to assume such services as of RBL's
first pay period of 1996.
B. Charges. The charges for the services set forth in
Section 3(A) above shall be follows: (i) One half of the
actual finance systems support charges for 1995 payroll
processing, assuming standard maintenance of these
systems in a shared mode with no enhancements or new
development; (ii) A unit charge of $.85 for each
check/EFT stub processed; (iii) A unit charge of $.85
for each W-2 processed; (iv) Actual charges incurred for
check stock, signature plates, forms (e.g. W-2's, SUI's)
and bank fees. In addition, if requested by RBL, Roche
will provide the following services to RBL at the hourly
labor charge set forth in Section 7(N): (i) Registering
NHL or its successor in all current RBL tax reporting
jurisdictions; and (ii) formally notifying jurisdictions
of the Merger and that tax deposits made by the
predecessor need to be transferred to the accounts of the
successor. Additional fees, if any, for executive
compensation administration services shall be agreed to
between the parties.
4. Interim Risk Management Services
X. Xxxxx. Xxxxx agrees to provide interim risk
management services for RBL from the Effective Time of the
Merger until the earlier of the expiration of such
insurance policies or the termination of such policies by
RBL, but no later than December 31, 1995. These services
shall include, but not be limited to, (i) processing
claims reported after the Effective Date, but based upon
acts, omissions, or events which occurred prior to the
Effective Date and which are covered under the Roche
occurrence based policies, (ii) assisting RBL in
obtaining and reviewing extended "tail" coverages for
prior Roche claims-made policies, and (iii) assisting RBL
in processing any claims which are reported and covered
under the above "tail" coverages.
B. Charges. The charges for the services set forth in
Section 4(A) above shall be as set forth in Section 7(N),
except that those services provided by the current Roche
Risk Services Manager shall be reimbursed at $100 an hour.
5. Taxes, Treasury, and Cash and Banking Services
X. Xxxxx. Xxxxx agrees to provide interim taxes,
treasury and cash and banking services for RBL after the
Effective Time of the Merger upon the request of RBL.
These services shall include, but not be limited to, (i)
providing support in connection with any Federal tax
audits regarding periods up to the Effective Time, (ii)
assisting RBL with its 1994 and short period 1995 Federal
tax return filings and related payments, and (iii)
providing certain bank sweep and funding services in the
event that such services become necessary. It is
currently anticipated that RBL shall be able to assume the
services set forth in Subsection (iii) above no later than
May 10, 1995.
B. Charges. The charges for the cash and banking
services set forth in Subsection (iii) above shall be as
set forth in Subsection 7(N). The charges for the tax
services listed in Subsections (i) and (ii) above shall be
as set forth in Subsection 7(N), except that the hourly
rates for Roche Staff shall be $45 per person, per hour.
6. General Transitional Support Services
A. Environmental Transitional Support Services. With
regard to any licenses or permits which are currently held
in the name of Roche for the benefit of RBL, Roche agrees
to assist RBL in obtaining any necessary new licenses or
permits or the transfer thereof, including any
environmental or underground tank licenses or permits.
RBL agrees to use due diligence to obtain or transfer the
above-referenced licenses and be responsible for any
related fees, and to locate and use facilities other than
Roche's facilities for any hazardous waste disposal.
B. Lab Delivery Service of New York City, Inc.("LDS").
Roche agrees to provide those services which it currently
provides as are necessary to maintain and support LDS in a
manner that will reasonably ensure that RBL can use LDS
and its employees for RBL's specimen transportation
services. However, RBL shall remain solely responsible
for all LDS operations, and RBL agrees to continue to
reimburse Roche for the above-referenced services provided
to LDS by Roche, including prefunding by wire transfer any
LDS employee payroll taxes or payments made by Roche. In
addition, RBL agrees to indemnify and hold Roche harmless
for any liabilities to Roche which may arise under the
Collective Bargaining Agreement dated December 4, 1992, by
and between LDS and Local 917, an affiliate of the
International Brotherhood of Teamsters, AFL-CIO (the
"Union Agreement") and any liabilities which may arise
from claims by LDS, its employees, RBL or third parties,
related to LDS, its employees or its operations. The
parties hereby agree to cooperate in good faith with one
another to address any issues which may exist concerning
LDS and the Union Agreement.
C. Additional Services. In addition to those Support
Services set forth above, Roche agrees to provide
additional support and consultation services to RBL at
RBL's reasonable request in order to ensure a smooth
transition of such services from Roche to RBL or NHL. It
is hereby agreed that such additional support shall
include, but not be limited to, providing RBL with such
records and information as is necessary for it to assume
such services. The charges for the services above shall
be as set forth in Section 7(N). For any legal services
provided by the Roche Law Department, a rate for such
services shall be agreed to in advance.
7. General Conditions
A. Additional Costs/Fees. It is the intent of the
parties that additional third party costs, including
outside consultants retained by Roche, related to the
Support Services provided hereunder by Roche shall be
borne by RBL. In the event a cost or fee of any third
party is required to support RBL's needs following the
Effective Time of the Merger it shall be RBL's obligation
to pay such costs or fees after notice from Roche (if
reasonably practicable) and an opportunity to approve such
costs or fees, unless Roche has expressly agreed in
writing herein to bear such costs.
B. Warranty/Limitation of Liability. The parties
understand and agree that all Support Services provided
hereunder are "as is" and Roche makes no warranty, express
or implied, with respect to such services, the results of
such services, or that any errors or program problems will
be corrected. Roche is not in the business of providing
the Support Services to be provided hereunder on a
commercial basis and the fees charged are intended to
reimburse Roche for its actual cost and do not incorporate
a charge to cover warranties, guarantees, or claims of RBL
or third party claims. In the event of a third party
action relating to work performed, if Roche is added as a
third party, assuming such action is not caused by or
related or incident to, or the result of Roche's default
or negligent failure to meet its obligations hereunder,
RBL agrees to indemnify and hold Roche and its agents and
employees harmless from and against all such liability,
including the cost of defense by counsel reasonably
acceptable to Roche and RBL.
C. Prefunding. In the event Roche prefunds any monies
on behalf of RBL under this Support Agreement, after
notice from Roche (if reasonably practicable) and an
opportunity by RBL to approve such prefunding, RBL shall
reimburse Roche based on LIBOR plus 37.5 basis points.
D. Travel and Living Expense. RBL agrees to pay all
reasonable travel and living expenses incurred in
accordance with Roche's current policy. Once on site,
Roche personnel charges shall accrue for actual hours
worked only.
E. Protection of Proprietary and Confidential
Information. While this Support Agreement is in effect
and thereafter, each party shall keep in confidence all
confidential or proprietary information disclosed to it by
the other party ("Information") and shall protect the same
from: (1) Any use except as authorized; or (2)
Disclosure to third parties except as required by law,
judicial or governmental authority. Each party shall
inform any affected employees of the confidential nature
of the Information and of the obligations of such party
and such employees under this Support Agreement. Upon the
discontinuance, termination or cancellation of this
Support Agreement, the Information shall be returned to
the disclosing party at such party's prior written request
or shall be destroyed and such party shall certify as to
such destruction.
F. Indemnification. Subject to the limitations set
forth within this Support Agreement, RBL agrees to defend,
indemnify, and hold Roche, its parent, subsidiaries,
affiliated and related companies, directors, officers,
employees, and agents wholly harmless from and against all
third party claims, losses, lawsuits, settlements,
demands, causes, judgments, expenses, and costs (including
reasonable attorney fees) arising under or in connection
with this Agreement to the extent that such costs and
liabilities are proximately caused by the negligence or
willful misconduct of RBL.
Subject to the limitations set forth within this
Support Agreement, Roche agrees to defend, indemnify, and
hold RBL, its parent, subsidiaries, affiliated and related
companies, directors, officers, employees, and agents
wholly harmless from and against all third party claims,
losses, lawsuits, settlements, demands, causes, judgments,
expenses, and costs (including reasonable attorney fees)
arising under or in connection with this Agreement to the
extent that such costs and liabilities are proximately
caused by the negligence or willful misconduct of Roche.
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR
PUNITIVE DAMAGES, OR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL
DAMAGES (INCLUDING LOST PROFITS OR REVENUE).
G. Force Majeure. Roche's performance hereunder shall
be excused to the extent it is hindered or prevented due
to the following causes:
(1) Acts of God, including earthquakes, fire or
flood;
(2) Acts of any governmental authority;
(3) Acts of war, rebellion, sabotage,
riot, civil disorders or explosions; or
(4) Strikes or labor disputes.
H. Choice of Law. This Agreement shall be construed in
accordance with the Laws of the State of New Jersey
applicable to contracts made and to be performed wholly
within such State.
I. Assignment. Neither party may assign, delegate, or
transfer its rights or obligations hereunder without the
written consent of the other party.
J. Effectiveness; Merger. The effectiveness of this
Support Agreement is contingent upon the occurrence of the
Merger as of the Effective Time. If the Merger does not
occur as of the Effective Time, this Support Agreement
shall be void and of no force and effect. The terms and
conditions herein constitute the entire agreement between
the parties, other than the Merger Agreement or related
documents between the parties with respect to the matters
herein, and supersede all previous communications, whether
written or oral, between the parties with respect to the
subject matter hereof. No waiver, modification or
addition to this Support Agreement shall be valid unless
in writing and signed by an authorized representative of
the party to be charged. In the event of a conflict
between this Support Agreement and the Merger Agreement,
the Merger Agreement shall control.
K. Change in Law or Regulation. The terms of this
Support Agreement are intended to be in compliance with
all federal, state and local statutes, regulations or
ordinances applicable on the date the Support Agreement
takes effect. Should legal counsel for either party
reasonably conclude that any portion of this Support
Agreement is or may be in violation of such requirements,
or subsequent enactments by federal, state or local
authorities, or if any such interpretation, change or
proposed change materially alters the amount or method of
compensating Roche for performing the Support Services for
RBL, or materially increases the cost of Roche's
performance hereunder, this Support Agreement shall
terminate upon thirty (30) day's notice thereof to the
other party, unless within said thirty (30) day period the
parties agree to such modifications of the Support
Agreement as may be necessary to establish compliance with
such authorities or to reflect such change in compensation
or cost, if possible. The parties shall in good faith
attempt to reach an agreement to modify this Support
Agreement to establish compliance with such authorities or
to reflect such change in compensation or cost.
L. Billing. All charges shall be paid by RBL within
thirty (30) days of the receipt of each monthly invoice
from Roche, except for any funds to be wired pursuant to
this Support Agreement.
M. Notices. Any notice required to be given pursuant to
the terms and provision hereof shall be in writing and
shall be sent by certified or registered mail or overnight
deliver to RBL at:
Roche Biomedical Laboratories, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
With a copy to:
Roche Biomedical Laboratories, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Division Counsel
And to Roche at:
Xxxxxxxx-Xx Xxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
With a copy to:
Xxxxxxxx-Xx Xxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
N. General Charges. Unless otherwise specified herein
or unless otherwise agreed to by the parties, RBL shall
reimburse Roche for time incurred in providing the Support
Services as follows: (a) Roche Clerical (all non-exempt)
- $30 per person, per hour; (b) Roche Staff (Grades 9
through 16) - $55 per person, per hour; (c) Roche Manager
(Grades 17 through 23) - $75 per person, per hour; and (d)
Roche Director/Vice President (Grades 24 and higher) -
$100 per person, per hour.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed in their names as their official acts by their
respective executive officers, each of whom is duly authorized to
execute the same, all as of the date first written above.
ROCHE BIOMEDICAL LABORATORIES, INC.
Witness: ______________________ By: _______________________________
XXXXXXXX-XX XXXXX INC.
Witness: ______________________ By: _______________________________
