Exhibit 10.1
SEPARATION/SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
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THIS SEPARATION/SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS (the
"Agreement") is entered into this 27th day of March, 1998 by and
among Magellan Technologies, Inc., a Utah corporation
("Magellan"), ProHealth, Inc., a Utah corporation ("ProHealth"),
BioMeridian International, Inc., a Utah corporation
("BioMeridian") [Magellan, ProHealth, and BioMeridian are
collectively referred to as the "Magellan Parties"], Xxxxx X.
Xxxxx, an individual ("X. Xxxxx"), Xxxxxx X. Xxxxx, an individual
("X. Xxxxx") and Xxx X. Xxxxxxxx, an individual ("Xxxxxxxx") [X.
Xxxxx, X. Xxxxx and Xxxxxxxx are collectively referred to as the
"Stockholders"].
Recitals
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A. Magellan, ProHealth and the Stockholders entered into
that certain Merger Agreement dated as of the 1st day of October,
1997 (the "Merger Agreement") pursuant to which BioSource, Inc.,
an entity owned 100% by the Stockholders ("BioSource"), was
merged with and into ProHealth. In connection with such merger
(the "Merger"), each of the Stockholders entered into separate
Employment Agreements dated October 20, 1997 (collectively, the
"Employment Agreements") and Royalty Agreements dated October 20,
1997 (collectively the "Royalty Agreements") with ProHealth.
Subsequent to the Merger, the business of BioSource acquired in
the Merger, including the rights and obligations under the
Employment and Royalty Agreements, was transferred to
BioMeridian, a newly formed, wholly-owned subsidiary of
ProHealth.
B. Various disputes have arisen between the parties with
respect to the Merger Agreement, the Employment Agreements and
the Royalty Agreements, and the transactions, covenants,
representations and warranties, and indemnification obligations
set forth therein.
C. The parties now desire to resolve such disputes.
To resolve the disputes between them and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by each party, the parties hereby agree as
follows:
Agreement
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1. Cancellation of Shares. The Stockholders hereby agree
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that a total of 1,275,000 shares of the Common Stock of Magellan
(the "Magellan Common Stock") that was issued to the Stockholders
pursuant to the terms of the Merger shall be returned to Magellan
and cancelled. Each Stockholder shall return 425,000 shares of
the Magellan Common Stock. The Magellan Parties and the
Stockholders mutually agree that the Escrow Agreement dated
October 20, 1997 is terminated and all shares of the Magellan
Common Stock held by the Escrow Agent pursuant to the Escrow
Agreement shall be delivered to Magellan and cancelled pursuant
to this Section 1.
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2. Termination of Employment Agreement--X. Xxxxx. The
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Magellan Parties and X. Xxxxx mutually agree X. Xxxxx shall
resign his employment and that the employment of X. Xxxxx with
any Magellan Party is terminated and that the Employment
Agreement dated October 20, 1997 between X. Xxxxx and ProHealth
and its assigns is terminated effective March 15, 1998, including
any and all rights to any bonus or other incentive compensation
(including the bonus contemplated by Section 3.2 thereunder).
Notwithstanding the termination of the Employment Agreement, the
provisions of Sections 2.5 (assignment of intellectual property),
5.1 (return of property) and Section 6 (confidentiality, non-
compete and related provisions) of the Employment Agreement shall
remain in full force and effect (provided, that X. Xxxxx shall be
released from the non-compete provisions as set forth in Section
10 below), and X. Xxxxx shall receive that portion of his base
salary that would have accrued through the date of execution of
this Agreement.
3. Termination of Employment Agreement--X. Xxxxx. The
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Magellan Parties and X. Xxxxx mutually agree that X. Xxxxx shall
resign his employment and the employment of X. Xxxxx with any
Magellan Party is terminated and that the Employment Agreement
dated October 20, 1997 between X. Xxxxx and ProHealth and its
assigns is terminated effective upon March 15, 1998, including
any and all rights to any bonus or other incentive compensation
(including the bonus contemplated by Section 3.2 thereunder).
Notwithstanding the termination of the Employment Agreement, the
provisions of Sections 2.5 (assignment of intellectual property),
5.1 (return of property) and Section 6 (confidentiality, non-
compete and related provisions) of the Employment Agreement shall
remain in full force and effect (provided, that X. Xxxxx shall be
released from the non-compete provisions as set forth in Section
10 below), and X. Xxxxx shall receive that portion of his base
salary that would have accrued through the date of execution of
this Agreement.
4. Royalty Agreement. Each of the Stockholders and the
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Magellan Parties agree that each of the Royalty Agreements, which
by their terms are to terminate upon the termination of the
employment of X. Xxxxx, shall terminate upon the execution of
this Agreement.
5. Medical Coverage. The Magellan Parties will make
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available medical benefit coverage to X. Xxxxx and X. Xxxxx,
pursuant to COBRA for the period prescribed by law. Any premiums
required to maintain such medical benefit coverage shall be paid
by X. Xxxxx and X. Xxxxx, respectively.
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6. License Agreement. The Magellan Parties shall
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return ownership of and title to the technology received from the
Stockholders pursuant to the Merger Agreement. The Magellan
Parties, however, shall retain all right, title and interest in
and to any technology developed by the Magellan Parties after
October 1, 1997. The Stockholders will enter into a license
agreement ("License Agreement") with BioMeridian. The License
Agreement shall entitle BioMeridian to distribute, manufacture,
and further develop the technology acquired by the Magellan
Parties from BioSource in the Merger Agreement and reconveyed to
the Stockholders pursuant to this Section, which includes a DOS
system software, 3.1 software, and DCM units. The form of
License Agreement is attached hereto as Exhibit "A," and
provides, among other things, that:
(a) BioMeridian shall pay no royalties on the technology covered
by the license, (b) the license shall be perpetual, (c)
the license shall be non-exclusive, (d) the license shall
be nontransferrable, (e) any enhancements or developments of the
technology made by the Stockholders after the date of this
Agreement shall inure to their benefit and shall not be made
available to the Magellan Parties, and (f) any enhancements or
developments of the technology made
by the Magellan Parties after the date of this Agreement shall
inure to their benefit and shall not be made available to the
Stockholders. The Stockholders shall not represent that they are
identified with, a part of, or in any way affiliated with the
Magellan Parties in the manufacture, distribution, or marketing
of their products and services under the License Agreements.
7. Technical Documents. The Magellan Parties received
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certain technical documentation from the Stockholders for a
Windows95 product as part of the Magellan Parties' acquisition of
BioSource. The Magellan Parties agree to provide each of the
Stockholders with a copy of the technical documentation received
by the Magellan Parties from BioSource at the time of the
acquisition. The Magellan Parties shall have no obligation to
provide the Stockholders with any technical information regarding
development of the Windows95 product or any other technology
since the time of the acquisition. The Magellan Parties retain
all right, title and interest in and to the Windows95 software
and hardware products and any technology that has been developed
since the time of the Merger Agreement and the Stockholders shall
have no right, title or interest to development of the Windows95
product or any other technology developed since October 1, 1997.
8. BioSource Name. The Magellan Parties hereby relinquish
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all right, title and interest in and to the name "BioSource" and
agree that they shall not use the "BioSource" name for their
business or products, except insofar as may be required to
identify the former identity or derivation of their product or
business or as may be required by law. The Magellan Parties,
however, retain all rights to the "LISTEN" name and the
"BioMeridian" name and Stockholders shall have no right or
license to use such names.
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9. Cash Payments to Stockholders. Pursuant to Section
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1.6(d) of the Merger Agreement, the Magellan Parties agreed to
pay each of the Stockholders $50,000 as part of the acquisition
of BioSource. The Magellan Parties agree that any portion of the
$50,000 payments to each of the Stockholders that have not yet
been paid shall be paid by the Magellan Parties upon execution of
this Agreement. The Magellan Parties further agree to pay X.
Xxxxx and X. Xxxxx $20,000 each as severance pay. This sum shall
be paid in an initial payment of $10,000 to each of X. Xxxxx and
X. Xxxxx on or before April 10, 1998. The balance of $10,000
each shall be paid to X. Xxxxx and X. Xxxxx on or before July 20,
1998.
10. Non-Competition. Each Stockholder shall be free to
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compete with the Magellan Parties in the manufacture,
distribution, and sale of the technology conveyed to the Magellan
Parties in the Merger Agreement, and reconveyed to the
Stockholders in Section 6 above.
11. Share of Inventory. BioMeridian agrees to give J.
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Xxxxx and X. Xxxxx that portion of BioMeridian's inventory of
equipment identified on Exhibit "B" attached hereto. For a
period of six (6) months after execution of this Agreement,
BioMeridian further agrees to sell equipment and parts that are
within the scope of the License Agreement described in Section 6
above, from its inventory to X. Xxxxx and X. Xxxxx to the extent
available and consistent with the Magellan Parties' own business
needs. Any such sales to X. Xxxxx and X. Xxxxx as provided in
this Section 11 shall be at BioMeridian's cost. Payment shall be
cash, payable at the time of purchase.
12. Customer Responsibility. The Magellan Parties shall
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have the responsibility for customer communication, training, and
support for all of BioSource's or BioMeridian's current customer
base whether arising before or after the merger. The Magellan
Parties acknowledge, however, that each customer or user of its
system shall be free to choose its own future support
relationships as between the Magellan Parties and the
Stockholders.
13. Releases.
(a) Definitions. For the purposes of this Section 13,
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the following terms shall have the meanings set forth below:
"Claim" shall mean and refer to any and all
claims, liabilities, charges, demands, grievances, and
causes of action of any kind or nature whatsoever
(including without limitation claims for contribution,
subrogation, or indemnification), whether known or
unknown, suspected or unsuspected, liquidated or
unliquidated.
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"Magellan Affiliates" shall mean and refer,
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either individually or in any combination, to any past
or present officer, director, shareholder, employee, or
agent of a Magellan Party; any individual or entity
(including without limitation any past or present
officer, director, shareholder, employee or agent of
such entity) that owns, directly or indirectly, a legal
or beneficial interest (whether in whole or in part) in
a Magellan Party; or any entity (including without
limitation any past or present officer, director,
shareholder employee, or agent of such entity) in which
a Magellan Party owns, directly or indirectly, a legal
or beneficial interest (whether in whole or in part),
including without limitation, any other partnership,
joint venture, corporation, or limited liability
company.
Except as previously set forth herein, all employee
benefits available to X. Xxxxx and X. Xxxxx under current
policies of any Magellan Party or to which X. Xxxxx and X.
Xxxxx may claim to be entitled under the Employment
Agreement ceased at 11:59 p.m. on the date of execution of
this Agreement.
(b) Release by Stockholders. In consideration of the
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release of Claims by the Magellan Parties set forth herein,
and the other covenants and obligations of the Magellan
Parties set forth herein, each of the Stockholders, for
himself and for all persons or entities claiming by,
through, or under him, hereby irrevocably, unconditionally,
and completely releases each of the other Stockholders and
the Magellan Parties and any and all Magellan Affiliates of
and from any Claim that such Stockholder had, has, or may
claim to have against any other Stockholder and any Magellan
Party or any Magellan Affiliate: (1) arising from or
relating in any respect to the Merger Agreement, the Escrow
Agreement,the Employment Agreements, the Royalty Agreements
or the transactions contemplated by such agreements; (2)
arising from or relating to the termination of the
Employment Agreements and the Royalty Agreements; (3) any
and all claims arising out of or related to each of
Stockholder's employment with the Magellan Parties or any
Magellan Affiliate or the termination of that employment;
(4) for any Claim of breach of any warranty or
representation made in connection with the Merger Agreement,
the Escrow Agreement, the Employment Agreement or the
Original Royalty Agreement or the transactions contemplated
thereby; or (5) for any other Claims in any way related to
the Merger, the terminated Employment Agreements and Royalty
Agreements. Notwithstanding the foregoing, the Stockholders
do not release the Magellan Parties from their obligations
under this Agreement.
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(c) Covenant Not to Xxx. Each of the Stockholders
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promises not to file, or permit to be filed on his behalf,
any lawsuit, charge, or complaint against any Magellan Party
or any Magellan Affiliate with any administrative agency
(except as allowed by law) or with any state or federal
court asserting any Claim released in Paragraph 13(b) above.
In addition, each Stockholder waives any right to recover
damages, costs, and attorney's fees in any action brought by
such Stockholder or by any other party or entity (including
without limitation the Equal Employment Opportunity
Commission, the Utah Anti-Discrimination Division, or any
equal employment opportunity or anti-discrimination agency
of any other state) on such Stockholder's behalf asserting
any Claim released by Paragraph 13(b).
(d) Damages. Each Stockholder understands and agrees
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that, if such Stockholder breaches the terms of this
Agreement, including without limitation the covenant not to
xxx set forth in Paragraph 13(c), such breach will entitle
the Magellan Party or Magellan Affiliate against whom any
lawsuit, claim, or charge is brought to recover all legal
fees and costs (including expert fees) incurred by such
Magellan Party or Magellan Affiliate in defending against
any action or charge brought against such Magellan Party or
Magellan Affiliate seeking recovery based on or arising from
any Claim released by this Agreement.
(e) Release by Magellan. In consideration of the
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release of Claims by the Stockholders set forth herein, and
the other covenants and obligations of the Stockholders set
forth herein, each of the Magellan Parties, for itself and
for all persons or entities claiming by, through, or under
it, hereby irrevocably, unconditionally, and completely
releases each of the Stockholders of and from any Claim that
such Magellan Party had, has, or may claim to have against
any Stockholder: (1) arising from or relating in any
respect to the Merger Agreement, the Escrow Agreement, the
Employment Agreements, the Royalty Agreements or the
transactions contemplated by such agreements; (2) arising
from or relating to the termination of the Employment
Agreements and the Royalty Agreements; (3) any and all
claims arising out of or related to each of Stockholder's
employment with the Magellan Parties or any Magellan
Affiliate or the termination of that employment, (4) for any
Claim of breach of any warranty or representation made in
connection with the Merger Agreement, the Escrow Agreement,
the Employment Agreement or the Original Royalty Agreement
or the transactions contemplated thereby; or (5) for any
other Claims in any way related to the Merger, the
terminated Employment Agreements and Royalty Agreements.
Notwithstanding the foregoing, the Magellan Parties do not
release the Stockholders from their obligations under this
Agreement.
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14. Covenants of the Parties.
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(a) Non-Disparagement Agreement. Each Stockholder
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agrees that he will not make any statement or remarks,
whether written or oral, about any Magellan Party or any
Magellan Affiliate or take any action whatsoever that is
false or could be considered to be disparaging or otherwise
detrimental to the reputation of any Magellan Party or any
Magellan Affiliate or that is or could negatively affect or
otherwise interfere with the business relationship of a
Magellan Party or of any Magellan Affiliate with any of its
current or potential employees, shareholders, directors,
customers, business associates, or federal or state
regulatory agencies, except as required by law and in
response to a subpoena issued by an agency or court of
competent jurisdiction.
(b) Non-Disparagement/Non-Disclosure. Each Magellan
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Party agrees to cause its executive officers not to make any
statements or remarks, whether written or oral, about any
Stockholder or take any action whatsoever that is false or
could be considered to be disparaging or otherwise
detrimental to the reputation of any Stockholder, except as
required by law and in response to a subpoena issued by an
agency or court of competent jurisdiction. Each Magellan
Party further agrees that they will not disclose information
contained in their personnel file regarding a Stockholder to
any third party except as required by law or at the written
request of such Stockholder.
(c) Confidentiality. Each Stockholder hereby
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acknowledges and agrees that during his employment with any
Magellan Party (including BioSource which was acquired
pursuant to the Merger), such Stockholder had access to or
acquired information relating to the products, services,
trade secrets, technology, ideas, copyrights, trademarks,
service marks, methods, processes, research and development,
hardware, software, purchasing, accounting, business methods
and techniques (including without limitation all customer
lists, records of customer usage and requirements, and
similar information relating to customers or to prospective
customers), marketing and/or sales plans or proposals, cost
information, financial information, pricing materials, and
business communications of each Magellan Party and the
Magellan Affiliates (including those of BioSource acquired
in the Merger) (the "Confidential Information"). To protect
the Confidential Information of each Magellan Party and each
Magellan Affiliate, each Stockholder agrees that he will
not, without the express prior written consent of the
President of Magellan:
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(i) ever directly or indirectly,
intentionally or unintentionally, reveal, disclose, or
disseminate to any person or entity any Confidential
Information or any other information of any Magellan Party
or of any Magellan Affiliate or any other matters concerning
the business affairs of any Magellan Party or of any
Magellan Affiliate or (ii) ever use or exploit for any
purpose, including without limitation for the personal or
financial gain of such Stockholder or of any other person or
entity, any of the Confidential Information or any other
information of any Magellan Party or of any Magellan
Affiliate except as expressly permitted by the License
Agreement. Each of X. Xxxxx and X. Xxxxx agrees that,
within five (5) business days of his execution and delivery
of this Agreement to Magellan, he will return to Magellan,
without retaining any copy or duplicate of any type thereof,
any Confidential Information or any other information of any
Magellan Party or of any Magellan Affiliate.
(d) Injunctive Relief. In the event of an actual or
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threatened breach by a Stockholder of this Section 14, each
Stockholder specifically acknowledges that the Magellan
Party or any Magellan Affiliate will incur incalculable and
irreparable damage for each such actual or threatened breach
and that any Magellan Party or any Magellan Affiliate has no
adequate remedy at law for any such actual or threatened
breach. Therefore, each Stockholder acknowledges that any
Magellan Party or any Magellan Affiliate shall be entitled
to injunctive relief immediately and permanently restraining
the Stockholders from such continuing or threatened breach.
The rights and remedies of the parties hereto shall not be
mutually exclusive, and the exercise of one or more of the
rights or remedies provided for by this Agreement shall not
preclude the exercise of the other rights or remedies
provided for by this Agreement or by law, equity, statute,
or otherwise.
15. Indemnities. Each of the Stockholders agrees to
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indemnify and hold harmless the Magellan Parties from any claim
or cause of action arising from products or services provided by
the Stockholders or BioSource prior to October 20, 1997,
irrespective of whether the Claim arose before or after October
20, 1997. The Magellan Parties agree to indemnify and hold
harmless the Stockholders from any claim or cause of action
arising from products or services provided by the Magellan
Parties from October 20, 1997 to the date of execution of this
Agreement irrespective of whether the Claim arose before or after
the date of execution of this Agreement.
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16. Acknowledgment. Except as provided in the License
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Agreement and Sections 6, 7 and 8 above, the Magellan Parties
hereby acknowledge and confirm that they do not have any rights
to or interest in any of the intellectual property, inventions,
secret processes, copyrights, trade secrets, patents, trade
names, service marks and other intellectual property rights
related to the LISTEN system or any other intellectual property
rights associated with the LISTEN system or otherwise utilized by
the Stockholders, and that such rights are owned exclusively by
Stockholders. The Magellan Parties hereby assign to the
Stockholders any and all right, title and interest that the
Magellan Parties may have in and to such intellectual property.
The Magellan Parties agree to execute such further documents and
to take such further actions as may be necessary to verify and
establish title to such intellectual property with The
Stockholders.
17. No Admission. This Agreement is NOT an admission by
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any Magellan Party or any Magellan Affiliate, and each Magellan
Party and any and all Magellan Affiliates specifically deny, that
it or s/he has violated any contract, law, or regulation or that
it or s/he has discriminated against the Stockholders or
otherwise infringed on their rights and privileges or done any
other wrongful act.
18. Payment. Each of X. Xxxxx and X. Xxxxx acknowledges
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that upon receipt of the payment of the amounts set forth in
Section 9 above, he has received all monies due and owing to him
from any Magellan Party or any Magellan Affiliate under the terms
of the Employment Agreement and Royalty Agreement, including but
not limited to all wages earned by him through his last day of
employment with the Magellan Parties. Each of X. Xxxxx and X.
Xxxxx acknowledges that, except as provided in Section 9 above,
neither any Magellan Party nor any Magellan Affiliate has any
obligation to make severance, golden parachute, bonus, salary, or
other payments to him with respect to his employment with the
Magellan Parties.
19. Notices. Any notice required or permitted to be given
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under this Agreement shall be given at the following address:
To Magellan: Magellan Technologies, Inc.
00000 Xxxxx 000 Xxxx
Xxxxxx, Xxxx 00000
Attn: Xxxx Xxxxx
To the Stockholders: The addresses set forth on Exhibit "C."
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20. Entire Agreement. This Agreement is the entire
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agreement between the parties. No other promises or agreements
have been made to the Stockholders other than those contained in
this Agreement. This Agreement may not be modified except by a
document signed by Magellan and each Stockholder. Each
Stockholder warrants that he has not assigned any Claim released
by this Agreement, or any interest therein, to any third party.
This Agreement shall be interpreted, construed, and enforced in
accordance with the laws of Utah, and each party submits himself
or itself to the exclusive, personal jurisdiction of the courts
situated in Salt Lake County, Utah to resolve any dispute among
them, including without limitation any dispute arising under this
Agreement. Any waiver by any party hereto of any breach of any
kind or character whatsoever by any other party, whether such
waiver be direct or implied, shall not be construed as a
continuing waiver of, or consent to, any subsequent breach of
this Agreement on the part of the other party. In addition, no
course of dealing between the parties, nor any delay in
exercising any rights or remedies hereunder or otherwise, shall
operate as a waiver of any of the rights or remedies of the
parties. The provisions of the Agreement are severable. If any
part of this Agreement is found to be unenforceable, the other
provisions shall remain fully valid and enforceable. It is the
intention and agreement of the parties that all of the terms and
conditions hereof be enforced to the fullest extent permitted by
law. This Agreement shall inure to and bind the heirs, devisees,
executors, administrators, personal representatives, successors,
and assigns of the respective parties hereto.
21. Legal Fees. If a proceeding is brought to enforce this
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Agreement, the prevailing party shall be entitled to recover
reasonable attorney's fees, costs, and expenses incurred, in
addition to any other relief to which such party may be entitled.
22. Acknowledgement. Each Stockholder acknowledges that he
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has read this Agreement carefully and fully understands the
meaning of the terms of this Agreement. Each Stockholder
acknowledges that he has executed this Agreement voluntarily and
of his own free will and that he is knowingly and voluntarily
releasing and waiving all Claims that he has or may have against
any Magellan Party or any Magellan Affiliate to the extent
provided above.
23. Consultation with Legal Counsel. Each Stockholder
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further acknowledges that he has been advised, by this Agreement,
to consult with an attorney of his choice prior to signing this
Agreement. Each party agrees that he or it shall be solely
responsible for any attorney's fees incurred by that party in the
negotiation and execution of this Agreement.
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24. Counterparts. This Agreement may be signed in one or
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more counterparts, each of which shall be considered an original,
and all of which together shall constitute one document. This
Agreement may be signed by facsimile signature; provided,
however, that if any party to this Agreement signs by facsimile
signature, within 20 days of signing by facsimile, such party
shall provide to the other party to this Agreement a duplicate
original bearing the party's original signature, written in ink.
25. Waiver of Jury Trial. The parties hereto hereby
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irrevocably waive the right to a trial by jury in any and all
actions or proceedings brought with respect to any provision of
this Release or the enforceability thereof or to any other claims
or disputes between them.
26. Cooperation. Each party hereto agrees to execute and
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deliver such additional documents and instruments and to perform
such additional acts as any party may reasonably request or as
may be reasonably necessary or appropriate to effectuate,
consummate or perform any of the terms, provisions or conditions
of this Agreement.
27. Debt to Xxxx Xxxxx. The Magellan Parties agree that
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the debt owing to Xxxx Xxxxx from BioMeridian will be paid in
full in monthly payments as previously agreed, on time, with
proof of payment provided to Stockholders by the Magellan
Parties. The Magellan Parties will hold harmless and indemnify
Stockholders against any liability to Xxxx Xxxxx for this debt.
28. Transfer of Property. The Magellan Parties agree to
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give X. Xxxxx and X. Xxxxx the books, records, pictures, and
office equipment on Exhibit "D" attached hereto.
29. Patent Cooperation. The Magellan Parties agree
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reasonably to cooperate with the Stockholders in seeking patent
protection of the technology covered by the License Agreement.
The Stockholders shall bear all expenses associated with attempts
to secure patent protection. All right, title, goodwill and
interest, including ownership of any patents that may be issued
covering the technology covered by the License Agreement shall be
the property of the Stockholders except for such rights as are
granted to the Magellan Parties under the License Agreement.
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IN WITNESS WHEREOF, the parties have executed this
Severance/Settlement Agreement and Release of Claims on the dates
set forth below to be effective as of March 27, 1998.
STOCKHOLDERS
DATED: 27 Mar 1998 /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
DATED: 27 Mar 1998 /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
DATED: 27 Mar 1998 /s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx
MAGELLAN TECHNOLOGIES, INC.,
a Utah corporation
DATED: 27 Mar 1998 By: /s/ Xxxxxxx X. Fresh
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Its: CEO
PROHEALTH, INC.,
a Utah corporation
DATED: 3/27/98 By: /s/ Xxxxxxx X. Fresh
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Its: CEO
BIOMERIDIAN INTERNATIONAL,INC.,
a Utah corporation
DATED: 3/27/98 By: /s/ Xxxxxxx X. Fresh
Its: CEO
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STATE OF UTAH )
: ss.
COUNTY OF UTAH )
On the 27th day of March, 1998, personally appeared before
me Xxxxx X. Xxxxx, who duly acknowledged to me that he executed
the foregoing Separation/Settlement Agreement and Release of
Claims.
DATED: 3/27/98 /s/ Xxxxxx Xxxx
------------------------- ------------------------------------
Notary Public
Residing at: SLC, Utah
12
STATE OF UTAH )
: ss.
COUNTY OF UTAH )
On the 27th day of March, 1998, personally appeared before
me Xxxxxx X. Xxxxx, who duly acknowledged to me that he executed
the foregoing Separation/Settlement Agreement and Release of
Claims.
DATED: 3/27/98 /s/ Xxxxxx Xxxx
------------------------- ------------------------------------
Notary Public
Residing at: SLC, Utah
STATE OF UTAH )
: ss.
COUNTY OF UTAH )
On the 26th day of March, 1998, personally appeared before
me Xxx X. Xxxxxxxx, who duly acknowledged to me that he executed
the foregoing Separation/Settlement Agreement and Release of
Claims.
DATED: 3/26/98 /s/ Xxxxxx Xxxx
------------------------- ------------------------------------
Notary Public
Residing at: SLC, Utah
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STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 27th day of March, 1998, personally appeared before me Xxxxxxx X.
Fresh, who duly acknowledged to me that he is the Presiden/CEO of Magellan
Technologies, Inc., that he has the power and authority to execute the above
Separation Agreement and Release of Claims on behalf of Magellan Technologies,
Inc., and that he executed the foregoing Separation Agreement and Release of
Claims on behalf of Magellan Technologies, Inc.
DATED: 3/27/98 /s/ Xxxxxx Xxxx
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Notary Public
Residing at: SLC, Utah
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 27th day of March, 1998, personally appeared before me Xxxxxxx X.
Fresh, who duly acknowledged to me that he is the CEO of ProHealth, Inc., that
he has the power and authority to execute the above Separation Agreement and
Release of Claims on behalf of ProHealth, Inc., and that he executed the
foregoing Separation Agreement and Release of Claims on behalf of ProHealth,
Inc.
DATED: 3/27/98 /s/ Xxxxxx Xxxx
------------------------- ------------------------------------
Notary Public
Residing at: SLC, Utah
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 27th day of March, 1998, personally appeared before me Xxxxxxx X.
Fresh, who duly acknowledged to me that he is the CEO of BioMeridian
International, Inc., that he has the power and authority to execute the above
Separation Agreement and Release of Claims on behalf of BioMeridian
International, Inc., and that he executed the foregoing Separation Agreement and
Release of Claims on behalf of BioMeridian International, Inc.
DATED: 3/27/98 /s/ Xxxxxx Xxxx
------------------------- ------------------------------------
Notary Public
Residing at: SLC, Utah
14
"EXHIBIT A"
INTELLECTUAL PROPERTY LICENSE AGREEMENT
---------------------------------------
THIS AGREEMENT, dated as of March 27th, 1998, (hereinafter
the "Effective Date") is between BioMeridian International, Inc.,
a Utah corporation whose principal place of business is located
at 000 Xxxxx Xxxx Xxxxxxxxx, Xxxx, Xxxx 00000, (hereinafter
"BIOMERIDIAN"), and Xxxxx Xxxx Xxxxx, an individual residing at
000 X 000 X Xxxxxx XX 00000, Xxxxxx X. Xxxxx, an
individual residing at 0000 X 0000 X Xxxxx, XX 00000
and Xxx X. Xxxxxxxx, an individual residing at
0000 X. Xxxxxxx Xx. Xxxxxxxx (hereinafter "LICENSORS").
W I T N E S S E T H
WHEREAS, Licensors are the owners of patent applications,
patent rights, trade secrets, know how, copyrights, trademarks,
service marks, and other intellectual property relating to
electrodermal diagnosis and treatment equipment, and techniques,
and have the right to license this intellectual property to
others; and
WHEREAS, BioMeridian desires to acquire perpetual, non-
exclusive, royalty free licenses of some of the intellectual
property developed before October 20, 1997;
NOW THEREFORE, in consideration of the promises and mutual
covenants herein contained, BIOMERIDIAN and LICENSORS agree as
follows:
1. DEFINITIONS
-----------
"Licensed Technology" means LISTEN DOS-based operation
software, LISTEN Windows 3.1-based operating software and related
portable Digital Conductance Meter (DCM) units.
2. LICENSES
--------
Subject to the terms and conditions of this Agreement,
Licensors grant to BioMeridian a perpetual, non-exclusive,
nontransferrable royalty-free license to distribute, manufacture,
sell, and further develop the Licensed Technology. The license
granted herein specifically does not encompass and excludes any
improvements made to the Licensed Technology by either party
after the effective date of this Agreement. Any enhancements or
developments of the Licensed Technology after the effective date
of this Agreement shall inure solely to the benefit of the
developing individual or entity and is not subject to the terms
of this Agreement.
15
3. TRADEMARKS
----------
BioMeridian relinquishes, assigns, and transfers to
Licensors all right, title goodwill and interest in and to the
trademark, service xxxx and logo for the "BIOSOURCE" xxxx.
Licensors hereby relinquish, assign and transfer all right,
title, goodwill, and interest in and to the "LISTEN, BIOMERIDIAN,
HUMAN CALIBRATION, VIRTUAL LIBRARY, IMPRINTING REMEDIES, and
MERIDIANSCAN" trademarks, service marks, and logos. A six (6)
month phase-out period shall begin upon the execution of this
Agreement during which each party will be allowed to exhaust
their supplies of items bearing the aforementioned marks assigned
to others in this agreement.
4. COOPERATION
-----------
BioMeridian will cooperate in the filing and prosecution of
patents and other intellectual property by executing in a timely
manner all documentation necessary for the transfer and
protection of the intellectual property set forth in this
Agreement.
5. NOTICES AND OTHER COMMUNICATIONS
--------------------------------
Any notices or other communication required or permitted to
be given to any party shall be sufficiently given on the date of
mailing if sent to such party by registered or certified mail,
postage prepaid, addressed to it as its address set forth below,
or to such other address as it may designate by written notice
given to the other party.
In the case of BioMeridian:
000 Xxxxx Xxxx Xxxxxxxxx
Xxxx, Xxxx 00000
In the case of Licensors:
Xxxxx Xxxxx
000 X 000 X
Xxxxxx XX 00000
16
IN WITNESS WHEREOF the parties hereby have caused this
Agreement to be duly executed as follows:
BIOMERIDIAN INTERNATIONAL, INC. LICENSORS
By: /s/ Xxxxxxx X. Fresh By: /s/ Xxxxx X. Xxxxx
------------------------------- --------------------------
Xxxxx X. Xxxxx
Dated: 27 Mar 1998 Dated: 27 Mar 1998
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
Dated: 27 Mar 1998
By: /s/ Xxx X. Xxxxxxxx
-----------------------
Xxx X. Xxxxxxxx
Date: 26 Mar 1998
"EXHIBIT D"
BOOKS, RECORDS, PICTURES AND OFFICE EQUIPMENT
---------------------------------------------
TO BE TRANSFERRED BY THE MAGELLAN PARTIES
-----------------------------------------
TO X. XXXXX AND X. XXXXX
------------------------
1. Copies of files and records relating to education,
training, and reference materials, currently stored in
filing cabinets in the BioMeridian north storage
kitchen/breakroom.
2. Copies of records and documents related to FDA
documentation regarding all previous EDS systems
developed by X. Xxxxx and the current systems developed
by BioSource, covering Acupath, Interro, Prophyle,
Biopath, Data Touch, Digital Conductance Meter ("DCM"),
AIM 65 and the LISTEN System. These files are also
currently stored in the filing cabinets in the north
storage kitchen/breakroom at BioMeridian.
3. The homeopathic picture currently hanging in the
foyer of BioMeridian.
4. All books and other items in the bookshelves of
the BioMeridian library belonging to X. Xxxxx and X.
Xxxxx.
5. Files and file cabinets in the BioMeridian storage
shed.
17
6. The rocking chair currently stored in the
BioMeridian storage shed.
7. One drill press received from BioSource currently
at SkyHook, to be returned to X. Xxxxx.
8. The microwave at BioMeridian, is to be returned to
X. Xxxxx.
9. The following historical devices at the
BioMeridian Training Center: Acupath 1000, Interro
Profile and Data Touch systems.
10. Pictures at the BioMeridian Training Center
belonging to X. Xxxxx and X. Xxxxx may remain at the
Training Center and used as reference material for the
time being. X. Xxxxx and X. Xxxxx will request the
return of these pictures when they desire them.
11. Several of the book shelves in the BioMeridian
Library.
12. Copies of the software and hardware that was in
the possession of BioSource at the time of the merger
of BioSource with Magellan in October 1997. This
hardware and software will be provided to X. Xxxxx and
X. Xxxxx when the Magellan Parties' patent attorney
determines that the software and hardware are no longer
needed for purposes of securing a patent.
18
