EXHIBIT 10.4
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT (this "Agreement"), dated as of _____, 1997,
is made and entered into by and between Bio-Vascular, Inc., a Minnesota
corporation ("Bio-Vascular"), and Vital Images, Inc., a Minnesota corporation
("Vital Images"). Capitalized terms used in this Agreement and not otherwise
defined herein will have the meaning given in that certain Distribution
Agreement between the parties, dated of even date herewith (the "Distribution
Agreement").
RECITALS
WHEREAS, Vital Images is currently a wholly-owned subsidiary of Bio-
Vascular, and as such, currently relies on Bio-Vascular for the performance of
certain corporate services;
WHEREAS, Bio-Vascular and Vital Images have entered into the Distribution
Agreement, pursuant to which Bio-Vascular will distribute all of the issued and
outstanding shares of Vital Images Common Stock to its shareholders, on such
terms and conditions as are contained therein;
WHEREAS, following the Distribution, Bio-Vascular and Vital Images will be
operated as independent public companies, and Vital Images will no longer be a
wholly-owned subsidiary of Bio-Vascular; and
WHEREAS, Bio-Vascular and Vital Images wish to provide for the continuation
of certain services to be provided by Bio-Vascular to Vital Images for a period
following the Distribution, in connection with Vital Images' transition to an
independent public company.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound, Bio-Vascular and
Vital Images hereby agree as follows:
ARTICLE
1.
SERVICES
1.1. Initial Services. Subject to the terms and conditions of this Agreement,
Bio-Vascular will provide or cause to be provided to Vital Images the
following services (the "Initial Services"), each as more fully described
in the Exhibits to this Agreement:
(i) Accounting
(ii) Finance
(iii) Human Resources
(iv) Regulatory Matters
1.2. Additional Services.
(a) From time to time, Bio-Vascular and Vital Images may identify
additional services that Bio-Vascular will provide to Vital Images in
accordance with this Agreement ("Additional Services" and, together
with the Initial Services, the "Services"). The parties will enter
into and execute a written Exhibit with respect to each Additional
Service, setting forth a description of the Additional Service, the
time period during
which Bio-Vascular will provide the Additional Service, and where the
parties can so determine, the fee Vital Images will pay Bio-Vascular
for such Additional Service.
(b) Bio-Vascular agrees to perform, or to cause its agents or
subcontractors to perform, at fees determined pursuant to Section 3.1,
any Additional Service that: (i) Bio-Vascular provided immediately
prior to the Distribution Date and that Vital Images reasonably
believes was inadvertently or unintentionally omitted from the Initial
Services; or (ii) is essential to effectuate an orderly transition
under the Distribution Agreement, unless such performance would
significantly disrupt Bio-Vascular's operations or materially increase
the scope of Bio-Vascular's responsibility under this Agreement. If
Bio-Vascular reasonably believes the performance of Additional
Services required under subparagraphs (i) or (ii) would significantly
disrupt its operations or materially increase the scope of its
responsibility under this Agreement, Bio-Vascular and Vital Images
agree to negotiate in good faith the terms and conditions of such
Additional Services, but in no event will Bio-Vascular be obligated to
provide such Additional Services if the parties are unable to agree
upon acceptable terms and conditions for such Additional Services.
1.3. Subcontracting. Vital Images understands that, prior to the date of this
Agreement, Bio-Vascular may have subcontracted with one or more third
parties for services in connection with all, or portions of, the Services
to be provided hereunder. Bio-Vascular reserves the right to continue to
subcontract with third parties for Services or to enter into new
subcontract relationships for any Services; provided, however, that any
such subcontracting relationship will not relieve Bio-Vascular of any
obligation to provide Services hereunder. Bio-Vascular will charge Vital
Images for the actual cost to Bio-Vascular, without xxxx-up, of any such
third party consultants, associated firms, or other subcontractors used in
connection with the Services.
1.4. Excluded Services. Unless otherwise set forth in any Exhibit or in any
other writing, it is understood and agreed that Bio-Vascular will not
provide any legal or independent audit services to Vital Images, or any
other services not specifically provided for in this Agreement.
1.5. Transitional Nature of Services. Vital Images understands that the Services
are intended only to be transitional in nature, and are furnished by Bio-
Vascular solely for the purpose of accommodating Vital Images in connection
with the Distribution. Vital Images understands that Bio-Vascular is not in
the business of providing the Services and has no long-term interest in
continuing this Agreement. Vital Images hereby covenants and agrees to
undertake such actions as may be necessary to phase out the Services
provided by Bio-Vascular as soon as reasonably practicable, which actions
may include, but are not limited to, hiring appropriate personnel to
provide the Services within its own internal organization, or entering into
agreements with third parties for the provision of the Services.
1.6. Additional Resources. Except as provided in an Exhibit for a specific
Service, in providing the Services, Bio-Vascular will not be obligated to:
(i) hire any additional employees; (ii) maintain the employment of any
specific employee; or (iii) purchase, lease or license any additional
equipment or software.
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ARTICLE
2.
TERM AND RENEWAL
2.1. Term of Agreement and Services. The term of this Agreement will commence on
the Distribution Date and will continue so long as Services are provided
hereunder. Unless otherwise provided in the relevant Exhibit, the term of
each Service will commence on the Distribution Date and expire on the date
occurring six (6) months thereafter, subject to extension as provided in
Section 2.2.
2.2. Extension. The parties may, upon mutual written agreement, extend the term
of any or all of the Services for an additional period of time, as provided
in this Section. In the event Vital Images desires to extend the term of
any Service, Vital Images will provide Bio-Vascular with written notice at
least thirty (30) days in advance of the expiration of the then-current
Service term. Such notice will specify the Service, the period of time for
which the Service is proposed to be extended, and a description of any
requested changes to the terms of such Service. Bio-Vascular will give
return notice to Vital Images not more than fifteen (15) days thereafter,
indicating whether Bio-Vascular will agree to such extension or any other
changes to terms and conditions of the relevant Service. Any extension of
the term of any Service, or any other change in the terms and conditions of
any Service, will only be given effect if set forth in a written amendment
to the relevant Exhibit, executed on behalf of both parties.
ARTICLE
3.
COMPENSATION
3.1. Compensation. Vital Images will compensate Bio-Vascular for each Service as
set forth in the relevant Exhibit, or any effective amendment thereto. If
no fee is specified for a particular Service, Bio-Vascular will be
compensated for the total cost to Bio-Vascular of providing such Service.
For the purposes of this Agreement, "total cost" will be defined as all
direct and indirect costs Bio-Vascular incurs as a result of supplying the
Service to Vital Images, calculated, in Bio-Vascular's discretion, on the
basis of any of the following methods: (i) usage by Vital Images; (ii) Bio-
Vascular allocations based upon Bio-Vascular's standard accounting
practices; or (iii) Bio-Vascular management estimates of Services provided
to Vital Images.
3.2. Billing and Payment Terms. Bio-Vascular will invoice Vital Images each
month for all Services delivered during the immediately preceding month,
and Vital Images will pay each such invoice within thirty (30) days after
the date thereof. Invoices not paid within such thirty (30) day period will
accumulate interest at the annual rate of eighteen percent (18%).
ARTICLE
4.
INTERRUPTIONS IN SERVICES
4.1. Interruptions. Bio-Vascular will endeavor to provide uninterrupted Services
through the term of this Agreement. In the event, however, that Bio-
Vascular or any of its subcontractors or agents are wholly or partially
prevented from providing Service by reason of any Force Majeure event set
forth in Section 13.1 hereof, or if Bio-Vascular deems it necessary to
suspend delivery of any Service hereunder for purposes of inspection,
maintenance, repair, or replacement of equipment,
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parts or structures, Vital Images agrees that Bio-Vascular will not be
obligated to deliver such Service during such periods, provided that Bio-
Vascular has given, when feasible, reasonable written notice of the
interruption within a reasonable period of time, explaining the reason,
purpose and likely duration thereof, and provided further, that with
respect to any scheduled interruptions or maintenance, Bio-Vascular will
have provided, when feasible, reasonable advance notice thereof. If any
such interruption has a significant negative impact on Vital Images'
business operations and Bio-Vascular cannot readily reinstate the Service
involved, Bio-Vascular will use reasonable efforts to assist Vital Images
in securing an alternate provider in order to minimize the impact of the
interruption on Vital Images.
ARTICLE
5.
PERSONNEL
5.1. Supervision and Compensation. Bio-Vascular will employ, pay, supervise,
direct and discharge all Bio-Vascular personnel providing Services. Bio-
Vascular will be solely responsible for the payment of benefits and any
other direct and indirect compensation for Bio-Vascular personnel assigned
to perform Services. Bio-Vascular also agrees to be responsible for the
employees' worker's compensation insurance, employment taxes and other
employer liabilities relating to such personnel.
5.2. Selection of Personnel. Bio-Vascular will be solely responsible for
selecting and assigning personnel to perform Services, and will instruct
such personnel to perform Services in a timely, efficient and competent
manner. Vital Images will have the right to request that Bio-Vascular
replace personnel who do not perform the Services properly and in
accordance with reasonable technical or general work standards.
5.3. Standard of Care. Notwithstanding any other provision of this Agreement, it
is understood and agreed that Bio-Vascular is not in the business of
providing the Services and that the standard of care to which Bio-Vascular
and any Bio-Vascular employees or agents performing Services hereunder
shall be accountable shall be the standard of care used by Bio-Vascular in
furnishing comparable services to its own internal organization. Under no
circumstances will Vital Images hold Bio-Vascular or its employees or
agents accountable to a greater standard of care or one that is appropriate
for a party in the business of furnishing similar services.
ARTICLE
6.
INGRESS AND EGRESS
6.1. Right of Ingress and Egress. Bio-Vascular will at all times during the
term of this Agreement have the right of ingress to, and egress from, the
facilities and premises of Vital Images for any purposes in connection with
the delivery of Services, the exercise of any right under this Agreement or
the performance of any obligations required by this Agreement, subject to
reasonable safety and security policies and practices implemented by Vital
Images.
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ARTICLE
7.
CONFIDENTIALITY
7.1. Confidential Information.
(a) Each of Bio-Vascular and Vital Images will hold, and will cause its
officers, employees, agents, consultants, advisors and Affiliates to
hold, in strict confidence, and not to disclose, unless compelled to
disclose by judicial or administrative process or, in the opinion of
its independent legal counsel, by other requirements of law, all
confidential information concerning the other party.
(b) For purposes of this Section 7.1, confidential information about a
particular party (referred to herein as the "first party") shall mean
information known by the other party on the Distribution Date and
reasonably understood by the other party to be confidential and
related to the first party's business interests, or disclosed
confidentially by the first party to the other party after the
Distribution Date under the terms and for purposes of this Agreement
or any of the Related Agreements, except for:
(i) information learned by the other party for the first time after
the Distribution Date, but prior to any disclosure by the first
party;
(ii) information which is or becomes publicly available through no act
of the other party, from and after the date of public
availability;
(iii) information disclosed to the other party by a third party,
provided: (A) under the circumstances of disclosure the other
party does not have a duty of non-disclosure owed to such third
party; (B) the third party's disclosure is not violative of a
duty of non-disclosure owed to another, including the first
party; and (C) the disclosure by the third party is not otherwise
unlawful; and
(iv) information developed by the other party independent of any
confidential information of the first party which is known by the
other party on the Distribution Date and/or disclosed by the
first party thereafter.
(c) The foregoing restrictions will expire with respect to business
information which is confidential information five (5) years after the
date of disclosure of such information, unless and to the extent the
parties agree to a longer period for the foregoing restrictions with
respect to specific categories of business information which is
confidential information in which case the foregoing restrictions
shall expire with respect to such information on the expiration of
such longer period. The date of disclosure in the case of confidential
business information known by a party on the Distribution Date shall
be the Distribution Date. Each of Bio-Vascular and Vital Images shall
not disclose to another, or use, except for purposes of fulfilling
their respective obligations under this Agreement, any business
information which is confidential information of Vital Images or
confidential information of Bio-Vascular, respectively. The foregoing
restrictions shall not expire until such time and to the extent that
such information ceases to be confidential information.
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(d) Each party will protect confidential information hereunder by using
the same degree of care, but no less than a reasonable degree of care,
to prevent the unauthorized disclosure of the other party's
confidential information as the party uses to protect its own
confidential information.
(e) Each party shall ensure that its Affiliates, sublicensees and other
transferees agree to be bound by the same restrictions on use and
disclosure of confidential information as set forth herein prior to
disclosure of confidential information of the other party to such
persons.
ARTICLE
8.
DISCLAIMER AND LIMITATION OF LIABILITY
8.1. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
BIO-VASCULAR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SERVICES TO BE PROVIDED UNDER THIS AGREEMENT.
8.2. Limitation of Direct Damages. In the event of any performance or non-
performance under this Agreement which results in direct damages to Vital
Images, Bio-Vascular's maximum, cumulative and sole liability to Vital
Images for such direct damages will be limited by the total amount of fees
paid by Vital Images to Bio-Vascular, as of the date of the performance or
non-performance giving rise to the damage, with respect to the Service
giving rise to such direct damages. Vital Images acknowledges that
compensation up to such amount constitutes fair and reasonable compensation
for any direct damages that may be suffered or incurred by Vital Images.
Notice of any claim for direct damages must be made within two years of the
date of termination of the Service giving rise to the claim, and must
specify the amount of damages claimed and a description of the action and
the service giving rise to the claim.
8.3. Limitation of Consequential Damages. EXCEPT AS PROVIDED IN ARTICLE 9
HEREOF, BIO-VASCULAR WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO VITAL
IMAGES OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR
REVENUE) RESULTING OR ARISING FROM THIS AGREEMENT, ANY PERFORMANCE OR
NONPERFORMANCE UNDER THIS AGREEMENT OR TERMINATION OF THIS AGREEMENT. This
limitation applies regardless of whether the damages or other relief are
sought based on breach of warranty, breach of contract, negligence, strict
liability in tort or any other legal or equitable theory, and regardless of
whether Bio-Vascular was made aware of the possibility of such damages.
ARTICLE
9.
INDEMNIFICATION
9.1. Indemnification by Vital Images. Vital Images agrees to indemnify, defend
and hold harmless Bio-Vascular, its directors, officers, employees, agents
and representatives from any and all third-party claims, actions, demands,
judgments, losses, costs, expenses, damages and liabilities
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(including but not limited to reasonable attorneys fees and other expenses
of litigation) based upon, or arising out of, damage or injury to persons
or property caused by, attributable to or arising in connection with Bio-
Vascular's performance, non-performance or delayed performance of Services
under this Agreement; provided, however, that in no event will Vital Images
be required to indemnify and hold harmless Bio-Vascular in the event
damages are attributable to Bio-Vascular's fraud, intentional criminal
misconduct or gross negligence. Bio-Vascular agrees to indemnify, defend
and hold harmless Vital Images in respect of all liabilities related to,
arising from, asserted against or associated with such fraudulent,
intentionally criminal, or grossly negligent conduct.
9.2. Procedure. If Bio-Vascular intends to claim indemnification under Section
9.1, Bio-Vascular will promptly notify Vital Images in writing of any such
claim, tender to Vital Images the right to defend or settle such claim at
Vital Images' expense, and reasonably cooperate with Vital Images in
defending or settling any such claim. At its expense, Bio-Vascular may be
represented by, and actively participate through, counsel of its choice in
the defense or settlement of any such claim. In any event, Vital Images may
not settle any claim under Section 9.1 without the prior written consent of
Bio-Vascular, which consent will no be unreasonably withheld or delayed.
Vital Images will have no liability whatsoever with respect to claims which
Bio-Vascular or its independent counsel settle without the prior consent of
Vital Images. Vital Images' agrees that its indemnification or obligations
under Section 9.1 will survive termination of this Agreement.
Notwithstanding the foregoing, but subject to Article 8 hereof, Vital
Images will have the right to pursue any and all claims, whether at law or
in equity, that Vital Images may have against Bio-Vascular, its successors
in interest, permitted assigns, officers, directors, employees, agents,
representatives and persons and entities acting on its behalf based upon,
arising out of or in connection with the performance, non-performance or
delayed performance of the Services or any acts or omissions relating
thereto.
ARTICLE
10.
RECORDS AND INSPECTION RIGHTS
10.1. Records. Bio-Vascular agrees to maintain accurate records arising from or
related to the Services, including, but not limited to, accounting records
and documentation produced in connection with the Services.
10.2. Right to Audit. Bio-Vascular grants Vital Images the right to have Bio-
Vascular's cost records audited by an independent certified public
accountant selected by Vital Images and approved by Bio-Vascular. The
independent certified public accountant will agree to treat all
information disclosed in connection with any such audit as confidential
and will only disclose to Vital Images whether or not the costs Bio-
Vascular billed to Vital Images were in accordance with this Agreement.
Vital Images may request an audit no more than once each calendar year,
and is responsible for all costs of the auditor. If the accountant
determines that the costs were inaccurate, then the Bio-Vascular will
adjust the cost accordingly.
10.3. Pricing Adjustments. In the event of a tax audit adjustment relating to
the pricing of any or all Services provided pursuant to this Agreement in
which a taxing authority determines that any of the fees, individually or
in combination, did not result in an arm's-length payment, then the
parties may agree to make corresponding adjustments to the charges in
question for such period
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to the extent necessary to achieve arm's-length pricing. Bio-Vascular and
Vital Images agree to reflect any adjustment made pursuant to this Section
10.3 in their official books and records, and the resulting overpayment or
underpayment will create an obligation to be paid by the owing party.
ARTICLE
11.
TERMINATION
11.1. Termination by Either Party. This Agreement, or any Service provided
hereunder, may be terminated by either party upon written notice to the
other party if:
(a) the other party fails to perform or otherwise breaches a material
obligation under this Agreement; provided, however, that such party
failing to perform or otherwise breaching shall have thirty (30) days
from the date notice of intention to terminate is received to cure the
failure or breach, following which time this Agreement or Service
shall terminate if the failure or breach has not been cured;
(b) the other party makes a general assignment for the benefit of
creditors, becomes insolvent, a receiver is appointed, or a court
approves reorganization or arrangement proceedings;
(c) performance of this Agreement or any Service to be provided hereunder
has been rendered impossible for a period of three (3) consecutive
months by reason of the occurrence of any of the events described in
Section 13.1 hereof or if any other event occurs which can reasonably
be determined to permanently prevent the performance of this Agreement
or any Service; or
(d) during any-agreed upon renewal term, either party so desires at any
time, upon thirty (30) days advance written notice of intention to
terminate.
11.2. Termination Notices. Any termination notice will specify in detail the
Service(s) to be terminated and the effective date of termination.
11.3. Consequences of Termination. In the event a party terminates this
Agreement or any Service for any reason:
(a) Upon request, each party will return to the other party all tangible
personal property owned by the other party in their possession as of
the effective date of termination;
(b) Vital Images agrees to be responsible to Bio-Vascular for reasonable
and proper termination charges which will include all reasonable
cancellation costs incurred by Bio-Vascular or any costs for materials
or equipment reasonably acquired by Bio-Vascular in connection with
the provision of Service(s) in the event of: (i) termination by Vital
Images without cause; or (ii) termination by Bio-Vascular with cause.
(c) Vital Images will remain liable for payment to Bio-Vascular for
Services furnished prior to the effective date of termination.
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11.4. Services Provided After Termination/Expiration. Any Service(s) furnished
by Bio-Vascular and received by Vital Images after the termination or
expiration of this Agreement or any individual Service shall be governed
by the provisions of this Agreement. The furnishing or receipt of any
post-termination or post-expiration Service will not otherwise extend the
term of this Agreement, or any individual Service.
ARTICLE
12.
DISPUTE RESOLUTION
12.1. Procedures. If a dispute, controversy or claim (collectively, a "Dispute")
between Bio-Vascular and Vital Images arises out of or relates to this
Agreement, Bio-Vascular and Vital Images agree to use the following
procedures, in lieu of either party pursuing other available remedies and
as the sole remedy (expect as provided in Section 12.4 below), to resolve
the Dispute.
12.2. Initiation. A party seeking to initiate the procedures will give written
notice to the other party, briefly describing the nature of the Dispute.
The parties will hold a meeting within ten (10) days of the receipt of
such notice, attended by individuals with decision-making authority
regarding the Dispute, to attempt in good faith to negotiate a resolution
of the Dispute.
12.3. Submission to Arbitration. If, within thirty (30) days after such meeting,
the parties have not succeeded in negotiating a resolution of the Dispute,
they agree to submit the Dispute to binding arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association,
by a sole arbitrator selected by the parties. The arbitration proceeding
will be held in St. Xxxx, Minnesota, will be governed by the Minnesota
equivalent of the Federal Arbitration Act, 9 U.S.C. (S)(S) 1-16, and
judgment upon the award rendered by the arbitrator may be entered by any
court having jurisdiction thereof. The costs of arbitration may be
apportioned between Bio-Vascular and Vital Images by the arbitrator in
such manner as the arbitrator deems reasonable, taking into account the
circumstances of the Dispute, the conduct of each of the parties during
the proceeding, and the result of the arbitration.
12.4. Equitable Relief. Nothing herein will preclude either party from taking
whatever actions are necessary to prevent any immediate, irreparable harm
to its interests, including multiple breaches of this Agreement by the
other party. Otherwise, the parties agree to fully exhaust these
procedures prior to the initiating litigation. Either party may seek
specific enforcement of any arbitrator's decision under this Article.
12.5. Consolidation. The arbitrator may consolidate an arbitration under this
Agreement with any arbitration arising under or relating to the Related
Agreements or any other agreement between the parties entered into
pursuant to the Distribution Agreement, as the case may be, if the subject
of the Disputes thereunder arise out of or relate essentially to the same
set of facts or transactions. Such consolidated arbitration will be
determined by the arbitrator appointed for the arbitration proceeding that
was commenced first in time.
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ARTICLE
13.
MISCELLANEOUS
13.1. Force Majeure. Neither party will hold the other party responsible for a
delay in the performance of any obligation hereunder due to labor
disturbances, accidents, fires, floods, wars, riots, rebellions,
blockages, acts of governments, governmental requirements and
regulations, restrictions imposed by law or any other similar conditions,
beyond the reasonable control and without the fault or negligence of such
party, and the time for performance by such party will be extended by the
period of such delay. Notwithstanding the foregoing, in no event will
Vital Images be relieved of its payment obligations to Bio-Vascular for
Services delivered, regardless of cause.
13.2. Relationship of the Parties. Neither party is an agent of the other party
and neither party has any authority to bind the other party, transact any
business in the other party's name or on its behalf, or make any promises
or representations on behalf of the other party unless provided for in
any Exhibit or otherwise agreed to in writing. Each party will perform
all of its respective obligations under this Agreement as an independent
contractor, and no joint venture, partnership or other relationship will
be created or implied by this Agreement.
13.3. Entire Agreement. This Agreement, and the Exhibits the Agreement refers
to and which are incorporated into and made a part of this Agreement by
reference, constitute the entire agreement between Bio-Vascular and Vital
Images relating to the subject matter hereof, and, with the exception of
the Distribution Agreement, the Tax Sharing Agreement and any other
Related Agreements, there are no further agreements or understandings,
written or oral, between the parties with respect to such subject matter.
13.4. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Minnesota
(regardless of the laws that might otherwise govern under applicable
principles of conflict of laws) as to all matters, including, without
limitation, matters of validity, construction, effect, performance and
remedies.
13.5. Jurisdiction and Venue. Subject to the arbitration provisions of this
Agreement, each party consents to the personal jurisdiction of the state
and federal courts located in the State of Minnesota and hereby waives
any argument that venue in any such forum is not convenient or proper.
13.6. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly
given (i) on the date of service if served personally on the party to
whom notice is given; (ii) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, provided
telephonic confirmation of receipt is obtained promptly after completion
of transmission; (iii) on the business day after delivery to an overnight
courier service or the express mail service maintained by the United
States Postal Service, provided receipt of delivery has been confirmed;
or (iv) on the fifth day after mailing, provided receipt of delivery is
confirmed, if mailed to the party to whom notice is to be given, by
registered or certified mail, postage prepaid, properly addressed and
return-receipt requested, to the party as follows:
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If to Bio-Vascular: Bio-Vascular, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
Facsimile No. (000) 000-0000
If to Vital Images: Vital Images, Inc.
0000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile No. (000) 000-0000
Any party may change its address by giving the other party written notice
of its new address in the manner set forth above.
13.7. Modification of Agreement. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless the same shall be
in writing and signed by each of the parties hereto and then such
modification, amendment or waiver shall be effective only in the specific
instance and for the purpose for which given.
13.8. Successors and Assigns. Except as provided in Section 1.3 with respect to
subcontracting, a party's rights and obligations hereunder may not be
assigned or transferred without the prior written consent of the other
party hereto. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and shall survive any acquisition,
disposition or other corporate restructuring or transaction involving
either party.
13.9. No Third-Party Beneficiaries. This Agreement is solely for the benefit of
the parties to this Agreement and should not be deemed to confer upon
third parties any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without this Agreement.
13.10. Titles and Headings. The titles and headings to Articles and Sections
herein are inserted for convenience of reference only and are not
intended to constitute a part of or to affect the meaning or
interpretation of this Agreement.
13.11. Severability. In case any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable, the enforceability
of the remaining provisions hereof shall not in any way be affected or
impaired thereby. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions hereof without including
any of such which may hereafter be declared invalid, void or
unenforceable. In the event that any such term, provision, covenant or
restriction is hereafter held to be invalid, void or unenforceable, the
parties hereto agree to use their best efforts to find and employ an
alternate means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction.
13.12. No Waiver. Neither the failure nor any delay on the part of any party
hereto to exercise any right under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right
preclude any other or further exercise of the same or any other right,
nor shall any
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waiver of any right with respect to any occurrence be construed as a
waiver of such right with respect to any other occurrence.
13.13. Survival of Provisions. The representations, warranties and covenants
contained herein will survive termination or expiration of this Agreement
to the full extent necessary to protect the party in whose favor they
run.
13.14. Conflicting Provisions. In the event any provision of any Exhibit
conflicts with the provisions of this Agreement, the provisions of this
Agreement will be controlling.
13.15. Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement, and shall
become a binding agreement when one or more counterparts have been signed
by each party and delivered to the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered as of the date first written above.
BIO-VASCULAR, INC.
By:
-------------------------------------
Its:
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VITAL IMAGES, INC.
By:
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Its:
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12
EXHIBIT A
Service
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Accounting
Description of Service
----------------------
Bio-Vascular will provide Vital Images with transitional accounting support
including, but not limited to, supporting Vital Images' transition in the
following accounting functions: (i) payroll; (ii) accounting records; (iii)
creating and maintaining financial statements; (iv) cash flow management; (v)
accounts receivable; (vi) accounts payable; and (vii) state and federal
taxation.
EXHIBIT B
Service
-------
Finance
Description of Service
----------------------
Bio-Vascular will provide Vital Images with transitional finance support
including, but not limited to, supporting Vital Images' transition in the
following finance functions: (i) investment and working capital management; (ii)
financial reporting; (iii) budgeting, and (iv) Nasdaq SmallCap Market compliance
and other securities regulation compliance matters.
EXHIBIT C
Service
-------
Human Resources
Description of Service
----------------------
Bio-Vascular will provide Vital Images with transitional human resources support
including, but not limited to, supporting Vital Images' transition in the
following human resources functions: (i) procedures attendant to employment of
personnel; (ii) documents relevant to employees and employment matters in
general; (iii) policies relevant to employees and employment matters in general;
and (iv) compensation and benefits issues.
EXHIBIT D
Service
-------
Regulatory Matters
Description of Service
----------------------
No specific transitional support services are anticipated at this time, except
for general consultation regarding the establishment of regulatory affairs
capabilities for Vital Images and providing assistance in connection with any
state, federal, foreign or other regulatory bodies including, but not limited
to, the U.S. Securities and Exchange Commission or the Food and Drug
Administration that may arise in the time between the Distribution Date and the
establishment of such capabilities, which period is not expected to exceed six
(6) months.
