Exhibit 10(a)
FACILITIES SHARING AND INTERIM SERVICES AGREEMENT
This FACILITIES SHARING AND INTERIM SERVICES AGREEMENT is made as of the
28th day of February , 1996, between Seafield Capital Corporation, a Missouri
corporation ("Seafield") and SLH CORPORATION., a newly formed Kansas corporation
which is a wholly owned subsidiary of Seafield ("SLH").
RECITALS
A. The Boards of Directors of Seafield and SLH have determined that it
is in the best interests of the shareholders of Seafield: (1) to transfer to SLH
substantially all of Seafield's assets (the "Transfer Assets") other than its
holdings of LabOne, Inc. ("Lab") and its holdings of Response Oncology, Inc.
("Response") and certain other assets (the "Retained Assets" as more
particularly defined below) and certain liabilities (the "Transfer Liabilities")
and (2) to distribute to the holders of the issued and outstanding shares of
common stock, par value $1 per share, of Seafield all of the issued and
outstanding shares of common stock, par value $0.01 per share, of SLH (the
"Distribution") in accordance with Article II of a DISTRIBUTION AGREEMENT to
which this agreement is appended as Exhibit A ("Distribution Agreement").
B. Pursuant to Section 6.15 of the Distribution Agreement Seafield has
agreed to provide SLH with certain services and SLH has agreed to provide
Seafield with certain facilities in accordance with the terms of this agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound thereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1. Definitions and Terms. Except as otherwise provided herein, the
capitalized terms in this agreement shall have the same meaning as those terms
are defined to have in the Distribution Agreement.
ARTICLE II
FACILITIES AND SERVICES
2.01 AGREEMENT TO PROVIDE FACILITIES AND SERVICES. Subject to the terms
and conditions hereof Seafield agrees to provide to SLH and SLH agrees to accept
during the term specified in Section 2.03 (the "Term") all services required by
SLH for the operation of the offices of SLH's Chairman, Chief Executive Officer,
Chief Accounting
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Officer and Chief Financial Officer, together with clerical and administrative
services, but not including services provided exclusively by Scout Development
Corporation and its subsidiaries. Services to be provided hereunder shall be
provided on a reasonably timely basis. The Services provided hereunder shall be
provided in exchange for the facilities to be provided by SLH to Seafield as set
forth in Section 2.02 hereof.
2.02 AGREEMENT TO PROVIDE FACILITIES AND SERVICES. Subject to the terms
and conditions hereof SLH agrees to provide Seafield and Seafield agrees to
accept during the term specified in Section 2.02 (the "Term") the use of SLH
facilities at 0000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx (the
"Offices") for up to 16 Seafield officers and employees, including the Seafield
employees performing services for SLH under Section 2.01. The facilities shall
include appropriate office space, furniture, equipment and supplies to support
the day to day activities of such personnel during the term of this agreement.
The facilities provided hereunder shall be provided in exchange for the services
to be provided by SLH to Seafield as set forth in Section 2.02 hereof; provided,
however, following the Distribution, Seafield and the Company will review the
amount of personnel and facilities used under the arrangement and each will
reimburse the other to the extent that the exchange of facilities for services
is not reasonably equivalent.
2.03 TERM. This Agreement shall be effective on the date first written
above and shall continue until terminated by either party by giving written
notice to the other party of termination to become effective as of the end of
the month following the month in which notice of termination is given.
ARTICLE III
MISCELLANEOUS
3.01 SEAFIELD INDEMNIFICATION. SLH further agrees to indemnify and hold
harmless Seafield, its officers, agents, employees, directors, representatives
and successors from any claims, liabilities, damages, losses, costs, attorneys
fees, damages and/or liability, worker's compensation and discrimination actions
and/or any other type of civil, administrative or criminal action(s) whether
such action(s) be brought by Seafield's personnel and/or any other third
party(ies), that they, or any one of them, may suffer or sustain as a result of
any claims, demands or causes of action arising out of, or in any way related to
the action or inaction of SLH relating to SLH's use of Services provided to SLH
by Seafield hereunder.
3.02 SLH INDEMNIFICATION. Seafield further agrees to indemnify and hold
harmless SLH, its officers, agents, employees, directors, representatives and
successors from any claims, liabilities, damages, losses, costs, attorneys fees,
damages and/or liability, worker's compensation and discrimination actions
and/or any other type of civil, administrative or criminal action(s) whether
such action(s) be brought by SLH's personnel and/or any other third party(ies),
that they, or any one of them, may suffer or sustain as a
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result of any claims, demands or causes of action arising out of, or in any way
related to the action or inaction of Seafield relating to Seafield's use of
facilities provided to Seafield by SLH hereunder.
3.03 MUTUAL COVENANT. Except to the extent otherwise provided herein,
SLH and Seafield covenant and warrant that in the event that it appears that the
exchange of services for facilities as herein provided is not a fair exchange,
then a fair charge for the services or facilities provided hereunder shall be
determined in a fair and equitable manner and thereafter paid to the party
providing such service or facility..
3.04 FORCE MAJEURE. If either party is unable to perform any of its
duties or fulfill any of its covenants or obligations under this Agreement as a
result of causes beyond its control and without its fault or negligence,
including but not limited to acts of God or government, fire, flood, war,
governmental controls, and labor strife, then such party shall not be deemed to
be in default of this Agreement during the continuance of such events which
rendered it unable to perform; such party shall have such additional time
thereafter as is reasonably necessary to enable it to resume performance of its
duties and obligations under this Agreement; and the party entitled to such
performance shall not be required to pay the other party for such performance to
the extent that such other party is unable to perform. Notwithstanding the
foregoing, if the suspension of a party's obligation to perform under this
Agreement is of such a nature or duration as to substantially frustrate the
purpose of this Agreement, then SLH or Seafield, as the case may be, shall have
the right to terminate this Agreement by giving to the other 30 days' prior
written notice of termination, in which case termination shall be effective upon
the expiration of such 30-day period unless performance is resumed prior to such
expiration.
3.05 SEVERABILITY. The invalidity of any provision of this Agreement as
determined by a court of competent jurisdiction in no way shall affect the
validity of any other provision hereof. If a provision is determined to be
invalid, the parties shall negotiate in good faith in an effort to agree upon a
suitable and equitable alternative provision to effect the original intent of
the parties.
3.06 TIME OF THE ESSENCE. The parties hereto agree that with respect to the
performance of all terms, conditions and covenants of this Agreement, time is of
the essence.
3.07 CAPTIONS. Section captions are not a part hereof and are merely for
the convenience of the parties.
3.08 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof, this
Agreement shall bind the parties, their successors and assigns. This Agreement
shall be governed by the laws of the State of Missouri without reference to the
conflict or choice of law provisions thereof.
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3.09 ASSIGNMENT. Neither party shall assign or sublease this Agreement
or any Services to be provided hereunder without the prior written consent of
the other, which consent shall not be withheld unreasonably. Notwithstanding the
foregoing, consent shall not be required for an assignment or sublease of this
Agreement or any Service provided hereunder by either party to a corporate
affiliate of such party or to any third party vendor or third party record
keeper who had been providing all or a material portion of the Services to or on
behalf of SLH or Seafield, as the case may be, prior to the date first written
above.
3.09 AMENDMENT. This Agreement may not be amended without the express
written agreement of all parties hereto.
3.10 NOTICES. All notices under this Agreement must be in writing and
delivered personally or sent by United States mail, postage prepaid, addressed
as follows, except that any party by written notice given as aforesaid, may
change its address for subsequent notices to be given hereunder.
If to Seafield:
Seafield Capital Corporation
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
If to SLH:
SLH CORPORATION.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
Notice sent by U.S. mail will be deemed given when deposited with the U.S.
postal service.
3.11 LIABILITY FOR NONPERFORMANCE. None of the parties hereto nor any
subsidiaries of such parties shall have any liability to each other for failure
to perform its obligations hereunder unless such failure arises out of, directly
or indirectly, the misconduct or gross negligence on the part of the
nonperforming party. Seafield shall not be required to perform any Service (or
any part of any Service) to the extent that performance of such Service (or such
part of such Service) would violate any law, rule or regulation.
3.12 INDEPENDENT ENTITIES. In carrying out the provisions of this
Agreement, Seafield and SLH are and shall be deemed to be for all purposes,
separate and independent entities. Seafield and SLH shall select their employees
and agents, and such employees and agents shall be under the exclusive and
complete supervision and control of
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Seafield or SLH, as the case may be. Seafield and SLH hereby acknowledge
responsibility for full payment of wages and other compensation to all employees
and agents engaged by either in the performance of their respective Services
under this Agreement. It is the express intent of this Agreement that the
relationship of Seafield to SLH and SLH to Seafield shall be solely that of
separate and independent companies and not that of a joint venture, partnership
or any other joint relationship.
3.13 NONFIDUCIARY STATUS. In carrying out the provisions of this
Agreement, neither party shall be a fiduciary (as defined in Section 3(21) of
ERISA) with respect to any employee benefit plan, program or arrangement
maintained by or on behalf of the other party. Each party will provide Services
pursuant to the terms and conditions of this Agreement in accordance with the
directions, guidelines and/or procedures established by SLH or Seafield, as the
case may be, or the plan administrator (as defined in Section 3(16) of ERISA) of
each party's employee benefit plans or arrangements.
3.14 THIRD PARTY BENEFICIARIES. The provisions of this Agreement are
solely for the benefit of the parties and are not intended to confer upon any
person except the parties any rights or remedies hereunder. There are no third
party beneficiaries of this Agreement, and this Agreement shall not provide any
third person with any remedy, claim, liability, reimbursement, action or other
right in excess of those existing without reference to this Agreement.
3.14 CONSTRUCTION. For purposes of this Agreement, references to
Seafield, with respect to events or periods prior to the date first written
above, shall mean and include, where appropriate, SLH's operation of the
Transferred Businesses as they existed prior to such date.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date set forth above, each of which shall, for all purposes,
be deemed an original and all of which shall evidence but one agreement between
the parties hereto.
SLH CORPORATION, SEAFIELD CAPITAL CORPORATION,
a Kansas corporation a Missouri corporation
s/Xxxxx X. Xxxxxx s/P. Xxxxxxx Xxxxxx
By: __________________________ By:__________________________
Name: Xxxxx X. Xxxxxx, CFA Name: P. Xxxxxxx Xxxxxx, CFA
Title: President Title: President
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