EXHIBIT 10.4
EMPLOYEE BENEFITS AGREEMENT
THIS EMPLOYEE BENEFITS AGREEMENT (the "Agreement") is effective as of April 6,
1998, and is by and between:
(a) ATL Ultrasound, Inc., a corporation of the State of Washington doing
business at Advanced Technology Laboratories, having a place of business at
00000 Xxxxxxx-Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx("XXX"), and
(b) Handheld Ultrasound Systems, Inc., a corporation of the State of
Washington, having a place of business at 00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000 ("HUS").
WHEREAS, HUS is a wholly-owned subsidiary of ATL, and the directors, officers,
and employees of ATL including those assigned to the HUS Business (as defined
below) participate in certain stock-based compensation and incentive plans,
insurance plans, and retirement and other benefit plans currently maintained or
sponsored by ATL.
WHEREAS, ATL and HUS have entered into a Distribution Agreement (the
"Distribution Agreement") under which ATL will distribute all of the issued and
outstanding shares of HUS Common Stock to ATL shareholders under the terms and
conditions in the Distribution Agreement.
WHEREAS, following the Distribution (as defined in the Distribution Agreement),
ATL and HUS will be operated as independent public companies, and HUS no longer
will be a subsidiary of ATL.
WHEREAS, ATL and HUS wish to provide for the allocation of responsibilities with
respect to certain employee benefit matters following the Distribution.
NOW, THEREFORE, in consideration of the terms and conditions in this Agreement,
the parties agree as follows:
I. DEFINITIONS
1.0 Definitions. Capitalized terms used in this Agreement which are not
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defined below shall have the meanings set forth in the Distribution Agreement.
The following terms shall have the following meanings which shall be applicable
equally to both the singular and the plural forms of the terms defined:
(a) "ATL Stock Option" shall mean an option to purchase ATL Common Stock
granted by ATL pursuant to any ATL Plan.
(b) "Plan" shall mean any plan, policy, arrangement, contract or agreement
providing compensation or benefits for any group of employees or for
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any individual employee, or the dependents or beneficiaries of any such employee
whether formal or informal, or written or unwritten, and including, without
limitation, any means pursuant to which any benefit is provided by an employer
to any employee or the beneficiaries of any such employee.
(c) "401(k) Retirement Plan" shall mean a defined contribution plan for
employees and their beneficiaries maintained pursuant to Section 401(k) or
Section 401(a) of the Code, and in compliance with the requirements of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
II. EMPLOYMENT
2.0. Responsibilities on Distribution Date. On the Distribution Date, HUS shall
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assume sole responsibility as the employer for the HUS Employees, and shall
cause any HUS Employee that is then a party to any employment, change in
control, or other employment-related agreement with ATL to terminate the
agreement effective as of the Distribution Date. Except as otherwise provided
in this Agreement, the assumption of the responsibility as employer by HUS shall
not constitute a severance or a termination of employment under any ATL Plan.
III. HUS 401(k) PLAN AND RETIREMENT BENEFITS
3.0. HUS 401(k) Plan. Effective as of the Distribution Date, HUS shall take all
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action necessary and appropriate to establish and administer a 401(k) Retirement
Plan (the "HUS 401(k) Plan") in such form as may be approved by the Board of
Directors of HUS.
3.1. Continuation of Benefits. Following the Distribution Date, HUS will offer
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benefits under the HUS 401(k) Plan to all HUS Employees who, immediately prior
to the Distribution Date, were participants in or otherwise entitled to benefits
under the ATL Incentive Savings and Stock Ownership/401 (k) Plan (the "ATL 401
(k) Plan"). All HUS Employees who wish to participate in the HUS 401(k) Plan
will be required to enroll in the HUS 401(k) Plan in accordance with the terms
of the HUS 401 (k) Plan.
3.2. Account Balances. HUS Employees electing to participate in the HUS 401(k)
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Plan shall be permitted to rollover assets from the ATL 401 (k) Plan to the HUS
401 (k) Plan only as permitted by the terms in the HUS 401 (k) Plan. Each
rollover shall comply with Section 414(l) of the Code, the requirements of
ERISA, and the regulations promulgated thereunder.
3.3. ATL Information. As soon as practicable after the Distribution Date, ATL
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will provide to HUS a list of HUS Employees who were participants in or
otherwise entitled to benefits under the ATL 401(k) Plan on the business day
immediately prior to the Distribution Date, together with a listing of each HUS
Employee's account balance thereunder.
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3.4. Retirement Benefits. At the Distribution Date, ATL shall vest the HUS
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Employees for all purposes under ATL's retirement plan. Each HUS Employee will
be treated as a terminated employee under the retirement plan for the purposes
of receiving the retirement plan benefits.
IV. STOCK OPTION PLANS
4.0. Adjusted Options. Prior to the Distribution Date, each option to acquire
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ATL Common Stock (the "ATL Stock Option") which is outstanding and not exercised
shall remain subject to its original vesting schedule, and shall be adjusted by
ATL to represent two separately exercisable options (each an "Adjusted Option");
namely, one to purchase ATL Common Stock, and the other to purchase HUS Common
Stock.
The ATL Adjusted Options shall have substantially the same terms as the ATL
Stock Options, and shall be exercisable for the same number of shares of ATL
Common Stock as was originally covered by the related ATL Stock Option; however,
the number of shares of ATL Common Stock shall be subject to further adjustment
by ATL (as ATL deems necessary) so that the aggregate "intrinsic value" of the
ATL Adjusted Options and the HUS Adjusted Options determined in the manner set
forth below will equal the "intrinsic value" of the ATL Stock Options to which
the Adjusted Options relate. The exercise price for the ATL Adjusted Options
shall be established in accordance with the provisions below.
The HUS Adjusted Options shall have substantially the same terms as the ATL
Stock Option, and shall be exercisable for the number of shares of HUS Common
Stock equivalent to one-sixth of the number of shares of ATL Common Stock
originally covered by the related ATL Stock Options. The exercise price for the
HUS Adjusted Options shall be established in accordance with the provisions
below.
No certificates or scrip representing fractional shares of either ATL Common
Stock or HUS Common Stock, and no cash in lieu of fractional shares of either
ATL Common Stock or HUS Common Stock will be distributed in connection with any
Adjusted Options. Fractional shares, if any, shall be rounded down to the
nearest whole share.
4.1. Adjusted Option Exercise Price. The exercise price of each Adjusted Option
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shall be established to give effect to the Distribution as follows:
(a) the pre-Distribution fair market value of the ATL Common Stock as
determined by the closing price of the ATL Common Stock as quoted on the Nasdaq
National Market System on the trading day immediately preceding the Distribution
Date shall be established;
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(b) the ratio of (i) the exercise price for the ATL Stock Option (as
determined at the date of the grant of the ATL Stock Option) to (ii) the pre-
Distribution fair market value for the ATL Common Stock as determined in (a)
above shall be established;
(c) the exercise price for the ATL Adjusted Options shall be equal to the
opening price for the ATL Common Stock as quoted on the Nasdaq National Market
System on the trading day immediately following the Distribution Date multiplied
by the ratio established in (b) above; and,
(d) the exercise price for the HUS Adjusted Options shall be equal to the
opening price for the HUS Common Stock as quoted on the Nasdaq National Market
System on the trading day immediately following the Distribution Date multiplied
by the ratio established in (b) above.
4.2. Adjustment to Shares of ATL Common Stock. The number of shares of ATL
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Common Stock obtainable under an ATL Adjusted Option as determined in Section
4.0. shall be subject to further adjustment by ATL (as ATL deems necessary) so
that the aggregate post-Distribution "intrinsic value" of the ATL Adjusted
Options and the HUS Adjusted Options will equal the pre-Distribution "intrinsic
value" of the ATL Stock Options to which the Adjusted Options relate. For the
purposes of the provisions of this Section, the term "intrinsic value" shall
mean:
(a) with respect to each ATL Stock Option, the difference between (i) the
fair market value of the ATL Common Stock (as determined in accordance with the
provisions in Section 4.1. (a) above) and (ii) the exercise price for the ATL
Stock Option (as determined at the date of the grant of the option) multiplied
by the number of shares covered by the ATL Stock Option;
(b) with respect to each ATL Adjusted Option, the difference between (i)
the post-Distribution fair market value of the ATL Common Stock (as determined
in accordance with the provisions in Section 4.1. (c) above) and (ii) the
exercise price for the ATL Adjusted Options (as determined in accordance with
the provisions in Section 4.1. (c) above) multiplied by the number of shares
covered in accordance with the Distribution;
(c) with respect to each HUS Adjusted Option, the difference between (i)
the post-Distribution fair market value of the HUS Common Stock (as determined
in accordance with the provisions in Section 4.1. (d) above) and (ii) the
exercise price for the HUS Adjusted Options (as determined in accordance with
the provisions in Section 4.1. (d) above) multiplied by the number of shares
covered in accordance with the Distribution.
ATL reserves the right to adjust the manner in which the Adjusted Option
exercise price is established, and the adjustments to the number of shares of
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ATL Common Stock or HUS Common Stock in connection with the Adjusted Options to
exclude the effect of independent, determinable, and verifiable events on the
market value per share which may occur at approximately the same time as the
Distribution.
4.3. Administration. Following the Distribution Date and subject to applicable
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federal securities laws, any holder of an Adjusted Option may exercise the
option in whole or in part as follows:
(a) any holder of an ATL Adjusted Option may exercise any option by
delivering a properly executed notice of exercise to ATL, together with the
consideration therefor or other instructions. With respect to an option to
purchase ATL Common Stock, ATL shall proceed to issue shares of ATL Common Stock
in accordance with the terms of the applicable ATL Plan under which such option
was granted. With respect to an option to purchase HUS Common Stock, ATL shall
deliver to HUS:
(i) a copy of the notice of exercise; and,
(ii) any of the following:
(a) a check in the amount of the aggregate exercise price, or
(b) a copy of instructions to a broker designated by HUS
directing the broker to sell the shares of HUS Common Stock for which the option
was exercised, and to remit to HUS the aggregate exercise price (a "cashless
exercise"), or
(c) a request from the option holder to the administrator of the
applicable HUS Plan that the exercise price be satisfied by the delivery of
previously acquired shares of HUS Common Stock with a fair market value equal to
the aggregate exercise price, along with the certificates for such shares (a
"stock-for-stock exercise"); and,
(iii) a statement certifying that ATL has withheld or otherwise
obtained the payment of any applicable federal withholding tax payable by the
option holder in connection with such exercise; and,
(iv) a request that HUS direct the Agent to issue to the option
holder a certificate for the number of shares of HUS Common Stock for which such
option was exercised or, in the case of a cashless exercise, for any shares of
HUS Common Stock that were not sold in the cashless exercise. If the
administrator of the applicable HUS Plan shall permit HUS option holders to
effect either cashless exercises or stock-for-stock exercises, it shall not
discriminate against ATL option holders based solely upon their status as ATL
option holders.
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(b) any HUS option holder may exercise any option by delivering to HUS a
properly executed notice of exercise, together with the consideration therefor
or other instructions. With respect to an option to purchase HUS Common Stock,
HUS shall proceed to issue the shares of HUS Common Stock in accordance with the
terms of the applicable HUS Plan. With respect to an option to purchase ATL
Common Stock, HUS shall deliver to ATL:
(i) a copy of the notice of exercise; and,
(ii) any of the following:
(a) a check in the amount of the aggregate exercise price, or
(b) a copy of instructions to a broker designated by ATL to
effect a cashless exercise and to remit to ATL the aggregate exercise price, or
(c) a request from the option holder to the administrator of the
applicable ATL Plan to effect a stock-for-stock exercise, along with the
certificates for the shares of the previously acquired ATL Common Stock; and,
(iii) a statement certifying that HUS has withheld or otherwise
obtained the payment of any applicable federal withholding tax payable by the
option holder in connection with such exercise; and,
(iv) except in the case of a stock withholding exercise, a request
that ATL direct the Agent to issue to the option holder a certificate for the
number of shares of ATL Common Stock for which such option was exercised or, in
the case of a cashless exercise, for any shares of ATL Common Stock that were
not sold in the cashless exercise. If the administrator of the applicable ATL
Plan shall permit ATL option holders to effect either cashless exercises or
stock-for-stock exercises, it shall not discriminate against HUS option holders
based solely upon their status as HUS option holders.
(c) ATL or HUS shall not be obligated to authorize the delivery of any
certificates for shares or any proceeds relating to the exercise of an Adjusted
Option unless and until it shall have received all of the required documents
specified above, as applicable.
4.4. Restricted Stock. ATL and HUS each shall take or cause to be taken all
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actions necessary and appropriate to ensure that holders of restricted shares of
ATL Common Stock granted under the applicable ATL Plan will receive the shares
of HUS Common Stock issuable as a dividend thereon. The shares of HUS Common
Stock shall be restricted shares, subject to the same vesting schedule and other
restrictions as applicable to the restricted shares of ATL Common Stock to which
they relate. ATL and HUS each shall issue certificates
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for shares of ATL Common Stock or shares of HUS Common Stock, respectively, to
the holders of restricted shares upon the lapsing of the applicable restrictions
thereon.
4.5. Other Administration Matters. ATL shall administer all Adjusted Options
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exercisable for shares and all restricted shares of ATL Common Stock in
accordance with the applicable ATL Plan under which such options or restricted
shares were initially granted, including those options and restricted shares
held by HUS Employees. HUS shall administer all Adjusted Options exercisable
for shares of HUS Common Stock, and all restricted shares of HUS Common Stock
awarded under any applicable Plan in accordance with the applicable HUS Plan,
including those options and restricted shares held by ATL employees.
4.6. Duration. Until all Adjusted Options exercisable for shares of the
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registrant corporation have been exercised, issued, canceled, replaced, or have
expired in accordance with their terms, ATL and HUS at its own costs shall:
(i) use its best efforts to prepare and file with the Commission such
amendments and supplements to any forms filed with the Commission in connection
with the Distribution, and the prospectus used in connection therewith as may be
necessary to keep such forms effective and to comply with the provisions of
applicable law with respect to the issuance by ATL and by HUS of all of the ATL
Common Stock or HUS Common Stock respectively issuable pursuant to the Adjusted
Options;
(ii) furnish to the other such number of copies of the prospectuses to be
distributed pursuant to the requirements of any forms filed in connection with
the Distribution, and any amendments or supplements thereto, as the other shall
reasonably request for delivery to holders of Adjusted Options, along with any
other materials or documents which the registrant company has undertaken to
distribute to holders of Adjusted Options pursuant to its filings;
(iii) use its best efforts to register or qualify all options and shares of
ATL Common Stock or HUS Common Stock covered by any forms filed with the
Commission in connection with the Distribution under the securities or "blue
sky" laws of the jurisdictions in which holders of Adjusted Options reside, and
do any and all other acts and things that may be necessary to enable the holders
of Adjusted Options to exercise the options in such jurisdictions;
(iv) use its best efforts either to maintain the qualification of the ATL
Common Stock or the HUS Common Stock for inclusion on the Nasdaq National Market
System or to list such securities on any national securities exchange on which
shares of ATL Common Stock or HUS Common Stock are then listed, and to provide a
transfer agent and registrar for the shares; and,
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(v) reserve for issuance upon the exercise of Adjusted Options at all times
a sufficient number of shares of both ATL Common Stock and HUS Common Stock.
4.7. Notices. At least on a monthly basis, ATL and HUS each shall provide to
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the other notice of the termination of employment of a holder of an Adjusted
Option or an owner of restricted shares issued by the other in connection with
the Distribution, or of any other event which would result in the cancellation,
replacement, or expiration of such Adjusted Option, or the forfeiture of such
restricted shares.
4.8. Stock Purchase Plan. Immediately prior to the Record Date, the
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administrators of the ATL Employee Stock Purchase Plan (the "ATL ESP Plan") will
adjust the length of the then current purchase period (as defined in the ATL ESP
Plan) to end prior to the Record Date. Shares of ATL Common Stock will be
purchased for all eligible participants to allow the participation in the
distribution of HUS Common Stock in connection with the Distribution. The
purchase period will resume under the ATL ESP Plan on ______, 1998, or such
other date determined by the administrators of the ATL ESP Plan.
4.9. Other Employee Matters. For purposes of the applicable ATL Plan, any
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individual who in connection with the Distribution ceases to be an employee of
ATL and becomes a HUS Employee shall not be deemed to have terminated employment
for purposes of vesting of Adjusted Options or restricted shares or any other
provisions of such Plan, except as otherwise set forth in this Agreement.
V. OTHER BENEFITS
5.0. Medical/Dental Plan Coverage. On and after the Distribution Date, HUS
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shall be responsible for providing medical/dental coverage, and assuming
responsibility for the associated liabilities and obligations of all HUS
Employees and their eligible dependents and beneficiaries.
5.1. Disability Coverage. On and after the Distribution Date, HUS shall be
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responsible for providing life insurance coverage, short term disability
coverage, and long term disability coverage for all HUS Employees and their
eligible dependents and beneficiaries.
5.2. Continuation Coverage Administration. As of the Distribution Date, HUS
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shall be responsible for the administration of the continuation coverage
requirements imposed by any applicable law as they relate to any HUS Employee
and their current qualified beneficiaries. As of the Distribution Date, HUS
shall be responsible for all liabilities and obligations in connection with
coverage to be provided, claims incurred, and premiums owed on or after the
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Distribution Date under any HUS Plan in respect of any HUS Employees and their
current qualified beneficiaries.
5.3. Personal Time Off. Following the Distribution Date, HUS shall grant to HUS
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Employees the personal time off balances each HUS Employee had accrued with ATL
at the Distribution Date as reflected on the ATL payroll system.
5.4. Flexible Spending Accounts. Until December 31, 1998, ATL shall permit each
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HUS Employee to submit to ATL for reimbursement under ATL's health care and/or
dependent care flexible spending plans any eligible expenses incurred by the HUS
Employee prior to the Distribution Date.
5.5. Claims. ATL shall indemnify, defend, and hold harmless HUS from any
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employment-related claims of an ATL employee or a HUS Employee arising from acts
occurring before the Distribution Date. HUS shall indemnify, defend, and hold
harmless ATL from any employment-related claims of any HUS Employee arising from
acts occurring on or after the Distribution Date.
VI. ACCESS TO INFORMATION AND CONFIDENTIALITY
6.0. Access to Information. From and after the Distribution Date, and subject
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to the provisions in this Agreement, ATL and HUS will afford to each other and
to their authorized representatives reasonable access and duplicating rights
(with copying costs to be borne by the requesting party) during normal business
hours to all books, records, documents, communications, items, and matters,
including computer data relating to the Adjusted Options, and the administration
of the Adjusted Options and restricted shares.
6.1. Confidentiality. Any information disclosed by one party to the other party
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in connection with the performance of this Agreement, and any other information
designated in writing by the disclosing party as confidential (collectively, the
"Confidential Information") shall be received and maintained confidential by the
receiving party using the same standard of care that the receiving party uses to
protect its own confidential information, but not less than reasonable care.
The Confidential Information may be used by the receiving party only to perform
its obligations under this Agreement and shall not be disclosed to a third party
without the prior written consent of the disclosing party. The disclosure of
Confidential Information shall be restricted only to the minimum number of
employees of each party requiring access to the Confidential Information to
perform this Agreement.
The provisions of this Section shall not apply to Confidential Information which
is: (a) already known to the receiving party without an obligation of
confidentiality (it being understood that information of either party in the
possession of the other party prior to the Distribution Date shall not be
covered by this exception); (b) publicly known or becomes publicly known through
no unauthorized act of the
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receiving party; (c) rightfully received by the receiving party from a third
party; (d) disclosed to a third party by the disclosing party without similar
restrictions; (e) approved for disclosure by the disclosing party; or, (f)
required to be disclosed pursuant to a requirement of a governmental agency or
by law as long as the receiving party provides to the disclosing party notice of
the requirement prior to any disclosure.
Upon the termination of this Agreement for any reason, each party shall return
to the other party all Confidential Information of the other party, and cease
any further use of the Confidential Information.
VII. DISPUTE RESOLUTION
7.0. Negotiation and Binding Arbitration. Any dispute, controversy, or claim
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(collectively, a "Dispute") between the parties arising out of this Agreement or
relating to the subject matter of this Agreement shall be settled using the
following procedures as the sole means to resolve the Dispute.
A party seeking to resolve the Dispute shall give notice to the other party
briefly describing the nature of the Dispute. A meeting will be held between
the parties within ten days after the receipt of the notice. The meeting will
be attended by individuals with decision making authority regarding the Dispute.
If the parties have not resolved the Dispute to the mutual satisfaction of the
parties within thirty days following the initiation of the meeting, the parties
shall 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 will be held in Bothell,
Washington. Judgment upon the award rendered by the arbitrator may be entered
by any court having jurisdiction. The cost of the arbitrator will be shared
equally by the parties. At the conclusion of the arbitration, the arbitrator
shall indicate a prevailing party. The prevailing party shall be entitled to
its attorney's fees and other costs in connection with the arbitration. To the
extent this Agreement limits the remedies of any party, the arbitrator shall not
have the authority to grant any remedy to any party in excess of the
limitations.
VIII. MISCELLANEOUS
8.0. Entire Agreement. This Agreement, and the agreements and other documents
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referred to in this Agreement, shall constitute the full, complete, and entire
understanding and agreement by and between the parties with respect to the
subject matter in this Agreement, and supersedes all previous negotiations,
commitments, and writings with respect to the subject matter of this Agreement.
8.1. Expenses. Except as otherwise provided in this Agreement, the parties each
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shall be responsible for their own costs and expenses incurred in
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connection with the implementation of this Agreement, and the consummation of
the transactions contemplated by this Agreement.
8.2. Governing Law. This Agreement shall be governed by, construed, and
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enforced in accordance with the laws of the State of Washington.
8.3. Notices. All notices, requests, demands, and other communications under
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this Agreement shall be in writing, and shall be deemed to have been duly given
(a) on the date of service if served personally on the party to whom notice is
given; (b) on the day of transmission if sent by facsimile transmission to the
facsimile number given below; (c) on the business day after delivery to an
overnight courier service, or the express mail service maintained by the United
States Postal Service; or (d) on the third day after mailing 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:
If to ATL:
Advanced Technology Laboratories
00000 Xxxxxxx-Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Vice President, Human Resources
Facsimile No. (425) 487-____
with copy to:
Advanced Technology Laboratories
00000 Xxxxxxx-Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Vice President, General Counsel
Facsimile No. (000) 000-0000
If to HUS:
Handheld Ultrasound Systems, Inc.
00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: President
Facsimile No. (425) ___-____
Any party may change its address by giving the other party notice of its new
address in the manner set forth above.
8.4. Modification of Agreement. No modification, amendment, or waiver of any
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provision of this Agreement shall be effective unless the same shall be in
writing
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and signed by each of the parties. The modification, amendment, or waiver shall
be effective only in the specific instance and for the purpose for which given.
8.5. Successors and Assigns. This Agreement shall be binding upon and inure to
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the benefit of the parties and their respective successors and permitted
assigns. This Agreement, and any of the rights, interests, or obligations under
this Agreement shall not be assigned by either party without the prior written
consent of the other party which consent shall not be withheld unreasonably.
8.6. No Third Party Beneficiaries. This Agreement is solely for the benefit of
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the parties, and is not intended to confer upon any other person any rights or
remedies.
8.7. Titles and Headings. The section and article headings in this Agreement
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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.
8.8. Severability. In case any one or more of the provisions contained in this
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Agreement should be invalid, illegal, or unenforceable, the enforceability of
the remaining provisions shall not in any way be affected or impaired. It is
the intention of the parties that they would have executed the remaining terms,
provisions, covenants, and restrictions without including any invalid, void, or
unenforceable provisions. In the event that any term, provision, covenant, or
restriction is held to be invalid, void, or unenforceable, the parties 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.
8.9. No Waiver. The failure by either party at any time to enforce any of the
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terms or conditions of this Agreement shall not constitute or be construed as a
waiver of such terms and conditions. Each party expressly reserves the right to
enforce the terms and conditions of this Agreement at any time.
8.10. Counterparts. This Agreement may be executed in one or more counterparts
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each 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.
8.11. Force Majeure. No party shall be liable to the other party for any
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failure to perform any obligation under this Agreement where such failure is due
to causes beyond the reasonable control of the party. Such causes include, but
are not limited to acts of war, government export controls, other governmental
acts, industrial dispute, lock-out, accident, fire, explosion, transport delays,
acts of a third party, or loss or damage to any equipment. Each party shall use
its best efforts to comply with its respective obligations under this Agreement
despite the intervention or occurrence of any such cause, and to resume
compliance with
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those obligations as soon as any such cause ceases to affect the performance of
its obligations under this Agreement.
ATL Ultrasound, Inc. Handheld Ultrasound Systems, Inc.
By: ___________________________ By: ______________________________
Title: ________________________ Title: ___________________________
Date: _________________________ Date: ____________________________
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