EXHIBIT 10.7
SHARED SERVICES AGREEMENT
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THIS SHARED SERVICES AGREEMENT (the "Agreement"), dated March 14, 2001 (the
"Effective Date"), is entered into by and between IVAX Corporation, a Florida
corporation ("IVAX"), and IVAX DIAGNOSTICS, INC., formerly known as
X0XXXXXXX.XXX INC., a Delaware corporation ("Company").
RECITALS
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WHEREAS, IVAX and Company entered into a Merger Agreement dated November
21, 2000, whereby IVAX Diagnostics, Inc. ("Diagnostics"), a Florida corporation
and wholly owned subsidiary of IVAX, merged with and into Company (the "Merger")
and Company became the surviving corporation following the Merger; and
WHEREAS Company desires IVAX to provide certain administrative and other
services previously provided by IVAX to Diagnostics prior to the Merger until
such time as Company is able to provide such services on its own or through
another third party;
AGREEMENT
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NOW, THEREFORE, IN CONSIDERATION of the mutual promises, covenants and
agreements set forth in this Agreement, the parties agree as follows:
1. Furnishing of Services. Commencing on the Effective Date and continuing
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through the term of this Agreement, IVAX agrees to furnish to Company the
administrative and other services identified in, and in accordance with, Exhibit
A attached hereto and made a part hereof (the "Services"), which may be amended
from time to time.
2. Fees for Services.
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2.1 For the Services, Company agrees to pay IVAX IVAX' actual costs
plus 15%.
2.2 IVAX shall xxxx Company monthly for Services rendered. Such
invoice shall contain a description of the Services rendered and the charges
therefor. Company shall pay such invoices within thirty (30) days of the date of
the invoice.
3. Term. Unless earlier terminated, this Agreement shall begin on the
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Closing Date and end ninety days after the Closing Date, unless such term is
extended by the mutual written agreement of the parties.
4. IVAX' Duties in Connection with the Services. IVAX shall use reasonable
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efforts to render the Services as and when Company shall request, based upon
mutually agreed upon schedules and in a manner consistent with IVAX' past
practices in providing such Services to Diagnostics prior to the Merger. IVAX
shall use commercially reasonable efforts to provide the Services in a timely
and effective fashion. Notwithstanding the foregoing sentence, both parties
acknowledge that IVAX may be required to furnish services similar to the
Services to itself and its affiliates. IVAX reserves the right, upon 30 days
prior written notice, to modify any of the Services furnished hereunder, to the
extent it is modifying such Services on an organization-wide basis.
5. Disclaimer. IVAX may rely in all respects upon data furnished by Company
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in rendering the Services hereunder. IVAX makes no warranties, express or
implied, by operation of law or otherwise, with respect to the Services
furnished under this Agreement. IVAX shall not be liable for damages or
otherwise with respect to the furnishing of the Services and Company hereby
releases IVAX from any and all claims that it may have with respect to the
furnishing of the Services, except for gross negligence or willful misconduct.
Notwithstanding the foregoing, Company shall not be required to pay IVAX for
Services not furnished or incorrectly furnished by reason of error. In no event
shall IVAX be liable for consequential, incidental, specific or punitive
damages, including, without limitation, loss of profits or goodwill, capital,
downtime expenses or claims of customers. Company further agrees that in making
any claim against IVAX in respect of any aspect of the provision of the Services
pursuant to this Agreement, it shall not institute suit against any employee of
IVAX past or present, and shall be limited solely to claims against and shall
have recourse only to IVAX.
6. Termination of Agreement. This Agreement may be terminated as follows:
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(i) by either party upon sixty days' prior written notice to the other
party;
(ii) by IVAX upon written notice to Company if Company shall have
failed to pay any amounts due hereunder within ten (10) business days after
receipt of written notice of its failure to pay such amounts when due; and
(iii) at any time by the mutual agreement of the parties.
7. Miscellaneous.
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7.1 This Agreement shall not be assigned by either party without the
prior written consent of the other party, which consent shall not be
unreasonably withheld, except that no such consent shall be required for a party
to assign this Agreement to an affiliate or a purchaser of all or substantially
all of the assets of such party by providing written notice to the other party.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of Florida without regard to its principles of conflicts of laws.
7.3 This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof. Except as is otherwise expressly
provided for herein, no supplement, modification or amendment of the Agreement
shall be binding unless in writing and executed by IVAX and Company.
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7.4 This Agreement shall be signed in any number of counterparts, each
of which for all purposes shall be deemed to be an original, and all of which
together shall constitute the same agreement.
7.5 The headings of the sections of this Agreement are inserted as a
matter of convenience and for reference purposes only, are of no binding effect,
and in no respect define, limit or describe the scope of this Agreement or the
intent of any section hereof.
7.6 Nothing in this Agreement, express or implied, is intended or
shall be construed to confer upon or give to any person, firm or corporation
other than the parties hereto any remedy or claim under or by reason of this
Agreement or any term, covenant or condition hereof, all of which shall be for
the sole and exclusive benefit of the parties hereto.
7.7 All notices, demands, requests and other communications required
or permitted to be given hereunder shall be deemed duly given on the date
delivered by hand, mailed by registered or certified mail, postage prepaid or
sent by overnight courier or facsimile:
If to IVAX:
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx,Xxxxxxx 00000
Attention:General Counsel
Facsimile:(000)000-0000
and if to Company:
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President and Chief Executive Officer
Facsimile:(000)000-0000
THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
IVAX CORPORATION
By:/s/ Xxxxx X. Xxxxxxxxx
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Name: XXXXX X. XXXXXXXXX
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Title: SENIOR VICE PRESIDENT
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IVAX DIAGNOSTICS, INC., F/N/A X0XXXXXXX.XXX INC.
By:/s/Xxxxxxx X'xxxx
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Name:XXXXXXX X'XXXX
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Title:PRESIDENT & CEO
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SIGNATURE PAGE TO SHARED SERVICES AGREEMENT
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EXHIBIT A
SERVICES TO BE PROVIDED BY IVAX
Payroll, including printing paychecks and making associated tax filings;
Treasury, including providing cash management services, including disbursements,
receipts, banking and investing;
Insurance, including providing and administrating insurance policies;
Legal;
Human resources, including providing and administrating employee benefits and
plans through the following dates:
medical, dental, flex and life through the end of the month in which the
merger is completed,and
medical, dental, flex continued by Diagnostics' employees under COBRA
through the end of the COBRA period;
Financial reporting, including providing consolidated reports and public
reporting;
Income taxes;
Information systems, including providing network and website hosting, phone and
data systems, software licenses and information systems support.
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