EXHIBIT 10.8
OPTION AGREEMENT TO PURCHASE EXCLUSIVE LICENSE TO USE PATENT RIGHTS
This option agreement (the "AGREEMENT") is between OmniCorder Technologies, Inc.
of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, hereinafter called
SPONSOR, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
hereinafter called SCIENTIST is as follows:
In consideration of good and Valuable services, including extensive efforts by
SPONSOR to market the technology of Dynamic Area Telethermometry, and the
consideration of One Dollar ($l.00), paid to SCIENTIST, receipt of which is
hereby acknowledged, SCIENTIST hereby gives and grants to SPONSOR, and assigns,
the exclusive option, to license on an exclusive basis, U.S. PATENT application
#08/368,161, filed January 3,1995 entitled "Detection of cancerous lesions by
their effect on the periodic modulation of perfusion in the surrounding
tissues", hereinafter called PATENT.
The option is given on the following terms and conditions:
ONE: PRICE AND TERMS OF PAYMENT:
The purchase price for the exclusive license to use PATENT and all proprietary
rights therein or based thereon mid all uses and products and benefits therein
and derived therefrom, (the, "LICENSE') shall be Three Hundred Shares (or,
Twenty Percent) of SPONSOR's Common Stock which will be transferred to the
SCIENTIST upon the exercise of this AGREEMENT, and SPONSOR shall pay SCIENTIST a
Royalty Fee of $300 for each complete DAT Breast Cancer Screening System
installed at a client site, in perpetuity paid annually on February 1st each
year, for the systems installed the previous year.
TWO: OTHER GOOD AND VALUABLE CONSIDERATIONS:
The payment by the SPONSOR to the SCIENTIST, upon the execution of this
AGREEMENT to purchase the LICENSE, of the good and valuable considerations as
set forth in this paragraph are conditional as herein described.
1. The SPONSOR shall provide the UB Foundation with a research grant,
(the "GRANT") of flee hundred and fifty thousand dollars ($550.000) to
be used for the single purpose of research related to Dynamic Area
Tetethermometry and its use in breast cancer detection. The GRANT will
be deposited in escrow with an Escrow Agent mutually acceptable to
both SPONSOR and SCIENTIST at the time of the transfer of LICENSE The
Escrow Agent will transfer the GRANT to the UB Foundation upon the
delivery, by the UB Foundation, of: (i) research proposal describing
the project schedule end budget, arid naming the SCIENTIST as the
Principal Investigator with whom the control of the GRANT resides;
(ii) written approval by the U.B. Foundation and which stipulates that
all discovery, inventions, techniques, processes, formulas, apparatus
or patents arising out of the research conducted under the GRANT are
the sole property of the SPONSOR and that; (iii) and further
stipulates that in the event of the resignation or termination
("TERMINATION") of the SCIENTIST from the state University of New York
at Buffalo ("S.U.N.Y.") and severance of his relationship with the UB
Foundation, any unused portions of the GRANT will be transferred
directly to the SCIENTIST to continue the same research; (iv) at the
event of the death or incapacitation or unwillingness ("INCAPACITY")
of SCIENTIST all unused portions of the GRANT will be returned to the
SPONSOR. The GRANT shall be held in escrow for a period not to exceed
six months, (the "TERM"). If, due to INCAPACITY the SCIENTIST does not
accept the GRANT by the end of the TERM ("GRANT REFUSAL"), the GRANT
may be declared withdrawn by the submission of a letter by the SPONSOR
at which time the Escrow Agent will refund the GRANT to the SPONSOR.
In the event of GRANT REFUSAL or INCAPACITY, withdrawal of the GRANT
after the end of the TERM may occur at any time and shall be at the
sole discretion of the SPONSOR and doing so shall not, in anyway,
affect the validity of the transfer of the LICENSE to the SPONSOR or
the SPONSOR's ownership of the LICENSE.
2. The SPONSOR shall provide the SCIENTIST with the use, at the earliest
possible date, but within 12 months following the exercise of this
OPTION, and for the period of the GRANT, of an infrared camera
manufactured by "Amber Company" which utilizes a Quartum Well Infrared
Photodetector developed by the let Propulsion Laboratory" in Pasadena
CA, or a device with substantially the same performance specifications
("DEVICE"). The SPONSOR will make every effort to make the DEVICE
available to the SCIENTIST at the earliest date In the event of
TERMINATION or GRANT REFUSAL or INCAPACITY the SPONSOR shall be
relieved of the requirements of this paragraph, which shall not, in
anyway, affect the validity of the transfer of the LICENSE to the
SPONSOR or the SPONSOR's ownership of the LICENSE.
3. The SPONSOR shall provide the SCIENTIST's company, AMARA Inc., with a
consulting contract, the duration of which shall be 12 months. The
conditions of the consulting contract shall provide for (i) up to
fifty two (52) person-days of employment at a rate of five hundred
dollars ($500) per person-day. (ii) travel related expenses not to
exceed twenty five thousand dollars ($25,000); (iii) and an equipment
and supplies budget of S50.000. In the event of TERMINATION or GRANT
REFUSAL or INCAPACITY or refusal by AMARA Inc. to accept this
consulting contract, the SPONSOR shall be relieved of the requirements
of this paragraph which, shall not, in anyway, affect the validity of
the transfer of the LICENSE to the SPONSOR Or the SPONSOR's ownership
of the LICENSE.
4. SPONSOR shall elect SCIENTIST as a member of its Board of Directors in
a manner consistent with the Bylaws of the SPONSOR and the Laws of
Delaware. If, due to INCAPACITY, the SCIENTIST does not accept the
position as a member of the SPONSOR's Board of Directors, the transfer
of the LICENSE to the SPONSOR or the SPONSOR's ownership of the
LICENSE shall not, in anyway, be affected.
5. Upon the resignation of the SCIENTIST from the State University of New
York at Buffalo (S.U.N.Y.) SPONSOR shall offer an employment contract
("CONTRACT') to SCIENTIST with the title and responsibilities of Vice
President of Research and Development and Chief Scientific Officer and
SPONSOR shall provide the SCIENTIST; (i) with monetary compensation at
a rate approximately equivalent to that is being provided to him by
S.U.N.Y.; (ii) with an employment benefits package consistent with
that received by all other senior executives employed by SPONSOR:
(iii) with the right to pursue other professional activities, so long
as said activities do not inhibit or interfere with his
responsibilities as an employee or Board of Directors member. In any
event, these other professional activities shall not consume more than
thirty percent of SCIENTIST's normal workweek;(iv) with this CONTRACT
having a duration of not less than five years. In the event that
SCIENTIST becomes an employee of SPONSOR before the consumption of all
GRANT funds, all unexpended GRANT funds will be applied to the
research budget of SPONSOR's Research and Development Department of
which SCIENTIST will head under this CONTRACT. The INCAPACITY of the
SCIENTIST to accept the CONTRACT as described herein, shall not, in
anyway, affect the validity of the transfer of the LICENSE to the
SPONSOR or the SPONSOR's ownership of the LICENSE.
THREE: LICENSE TERMINATION
If SPONSOR violates any of the terms of this AGREEMENT or in the event of
Abandonment of LICENSE, as specifically defined in Section "FOUR", or does not
provide any required payments within 60 days written notice from the SCIENTIST
that such payments are duo, the LICENSE shall terminate and all rights therein
shall revert to SCIENTIST. The SPONSOR shall, thereafter, have no rights in the
PATENT or proprietary rights therein or based thereon. In this event; SCIENTIST
will abide, respect, comply and uphold any and all sub-licensing agreements made
between any and all thud parties. SCIENTIST will retain any and all funds
received pursuant to this AGREEMENT as compensation.
FOUR: ABANDONMENT OF LICENSE
For the purposes of this agreement and for provision of LICENSE termination as
set forth in Section THREE. LICENSE will be considered in the state of
Abandonment by the SPONSOR if all of the following conditions apply: (i) SPONSOR
hula to pay SCIENTIST a royalty Ice for more than 18 months; (ii) SPONSOR fails
to enter into any negotiation with the purpose of selling, marketing, promoting
or sub-licensing LICENSE for more than 18 months; (iii) SPONSOR fails to expend
any time, money or resources to sell or promote the LICENSE for more than 18
months: (iv) SPONSOR fails to expend any time, money or resources to improve or
enhance the LICENSE or the products derived from the LICENSE for more then 18
months.
FIVE: PERIOD OF AGREEMENT AND EXTENSION:
This AGREEMENT may be exercised by giving notice thereof to SCIENTIST, at ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, at any time dining the primary period
from the date of this instrument until 12 o'clock am, June 27, 1997; or during
the extension period, if the AGREEMENT is extended, as herein provided, until 12
o'clock am March 27, l998. The OPTION may be so extended by SPONSOR giving
SCIENTIST written notice of extension
prior to the TERMINATION of the primary period, and paying to SCIENTIST at the
time of notice, the additional consideration of One Hundred Thousand Dollars
($100,000).
SIX: EXECUTION OF EFFECTUAL TRANSFER:
If the AGREEMENT is exercised, SCIENTIST will, within 10 days after the delivery
to hire of the notice of exercise and the placement of funds in the escrow
account pursuant to paragraph TWO , execute effectual transfer of the above
LICENSE. This assignment will take place at the earliest possible date. The
SPONSOR shall pay all customary and reasonable fees associated with the LICENSE
agreement. The LICENSE rights conveyed shall be free and clear of all liens,
encumbrances, and restrictions.
SEVEN: NOTICES:
Any notice hereunder shall be given in writing to the party for whom it is
intended in person or by registered mail at the following address, or such
future address as may be designated in writing to the SCIENTIST, at the address
set forth above to the SPONSOR at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
EIGHT: ASSIGNMENT AND SUCCESSION:
This AGREEMENT and the contact resulting from the exercise thereof shall bind
and inure to the benefit of the heirs, administrators, executors, successors,
and assigns of the respective parties except for those "Other Good and Valuable
Considerations" set forth in Section "TWO", which are not transferable. Aft
other rights of purchase hereunder may be assigned without restriction except as
provided for in Section "NINE".
NINE: SUB-LICENSING:
SPONSOR has the right to sub-license the LICENSE to any and all parties freely
and without restriction except when the sub-license agreement with the third
party permits:
(i) a selling price of a regional sub-license agreement between SPONSOR and a
third party of ices than an amount equal to the total population within the
region, covered by this sub-license, multiplied by $010; (ii) the transaction
fee, to be received by the SPONSOR from either the third party or the subject or
patient, for each cancer screening test, is lees than $1.00. In either case the
SPONSOR must have the approval of the SCIENTIST prior to entering into the
sub-license agreement with the third party. The provisions of Section "NINE" are
not transferable to the SCIENTIST's heirs, administrators, executors, successors
and assigns. In the event of the death or incapacity of the SCIENTIST, the
SPONSOR shall be immediately relieved of any restrictions or limits act forth in
Section "NINE"
TEN: RIGHT OF SCIENTIST TO INSPECT BOOKS AND RECORDS:
SCIENTIST shell be provided the opportunity to annually inspect the books and
records of the SPONSOR fix the purpose of confirming SPONSOR's compliance with
the provisions set forth in Sections "ONE" and NINE". This inspection shall
occur at the offices of the SPONSOR and at the expense of the SCIENTIST.
ELEVEN:
If any provision of this AGREEMENT is held to be illegal, invalid, or
unenforceable under present or future stare or federal .laws or rules arid
regulations promulgated thereunder effective during the term hereof such
provisions shall be fully severable, and this AGREEMENT shall be construed and
enforced as if such illegal, invalid, or unenforceable provisions had never
comprised a part hereof, and the remaining provisions hereof shell remain in
full force and effect and shell not be affected by the illegal, invalid, or
unenforceable provisions or by its severance herefrom Furthermore, the parties
hereto agree to negotiate in good faith to modify and amend this AGREEMENT, so
as to effect the original intent of the parties as closely as possible with
respect to those provisions which were held to be illegal, invalid, or
unenforceable.
TWELVE:
SCIENTIST warrants that he believes that he is the owner of the PATENT rights
and has the right to ester into this AGREEMENT without any breach of his
obligation to others.
Each party shall hold harmless amid indemnify the other party against any and
all claims, judgements, costs, awards, expenses (including reasonable attorneys'
fees) and liabilities of every kind arising from execution, and performance as a
result of that execution, of this AGREEMENT.
Each party will pay its own expenses, including attorneys fees, related to this
AGREEMENT.
Executed in duplicate on __________________
_________________________ (Signature of SCIENTIST)
_________________________ (Signature of SPONSOR)
AMENDMENT
In consideration of good and valuable services, including extensive efforts by
SPONSOR to market the technology of Dynamic Area Telethermometry, and the
consideration of One Dollar ($1.00), paid to SCIENTIST, receipt of which is
hereby acknowledged, SCIENTIST hereby gives and grants to SPONSOR an amendment
to:
SECTION FIVE: PERIOD OF AGREEMENT AND EXTENSION:
The sentence pertaining to the date of the primary period shall be amended to
read; "any time during the primary period from the date of this instrument until
12 o'clock am, September 15, 1997".
SECTION TWO: ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇):
with the right to pursue other professional activities, so long as said
activities do not inhibit or interfere with his responsibilities as an employee
or Board of Directors member. In any event, these other professional activities
shall not consume more than forty percent of SCIENTIST's normal workweek;
Executed in duplicate on __________________
_________________________ (Signature of SCIENTIST)
_________________________ (Signature of SPONSOR)
▇▇▇▇ ▇. ▇▇▇▇▇
President and CEO, OmniCorder Technologies, Inc.
AMENDMENT
In consideration of good and valuable services, including extensive efforts by
SPONSOR to market the technology of Dynamic Area Tclethermornetry, and the
consideration of One Dollar ($1.00), paid to SCIENTIST, receipt of which is
hereby acknowledged, SCIENTIST and SPONSOR hereby agree to amend and restate
certain sections of SECTION TWO and all of SECTION FIVE as follows:
TWO: OTHER GOOD AND VALUABLE CONSIDERATIONS:
2. The SPONSOR shall provide the SCIENTIST with the use, at the earliest
possible date, but within 12 months following the exercise of this
OPTION, and for the period of the GRANT, of an infrared camera
manufactured by "Amber Company" which utilizes a Quantum Well Infrared
Photodetector developed by the "Jet Propulsion Laboratory" in Pasadena
CA, or a device with substantially the same performance specifications
("DEVICE"). The SPONSOR will wake every effort to make the DEVICE
available to the SCIENTIST at the earliest date. The title to the
camera will be transferred to AMARA Inc. after a period of one year
with the understanding that the camera will be used for research
purposes only but not for applications in the area of breast cancer,
melanoma, or diabetes. In the event TERMINATION or GRANT REFUSAL or
INCAPACITY the SPONSOR shall be relieved of the requirements of this
paragraph, which shall not, in anyway, affect the validity of the
transfer of the LICENSE to the SPONSOR or the SPONSOR's ownership of
the LICENSE.
5. Upon the resignation of the SCIENTIST from the State University of New
York at Buffalo (S.U.N.Y.) SPONSOR shall offer an employment contract
("CONTRACT") to SCIENTIST with the title and responsibilities of Vice
President of Research and Development and arid Scientific Officer amid
SPONSOR shall provide the SCIENTIST; (i) with monetary compensation at
a gross monthly rate of $14,000. This figure shall be inclusive of all
payroll arid benefit related expenses; (ii) with the right to pursue
other professional activities, so long as said activities do not
inhibit or interfere with his responsibilities as an employee or Board
of Directors member. In any event, these other professional activities
shall not consume more than forty percent of SCIENTIST's normal
workweek nod will not be conducted in the area of breast cancer,
melanoma or diabetes; (iii) with this CONTRACT having a duration of
not less than five years. In the event that SCIENTIST becomes an
employee of SPONSOR before the consumption of all GRANT funds, all
unexpended GRANT funds will be applied to the research budget of
SPONSOR's Research and Development Department of which SCIENTIST will
head under this CONTRACT. The INCAPACITY of the SCIENTIST to accept
the CONTRACT as described herein, shall not; in anyway, affect the
validity of the transfer of the LICENSE to the SPONSOR or the
SPONSOR's ownership of the LICENSE.
FIVE: PERIOD OF AGREEMENT AND EXTENSION:
This AGREEMENT may be exercised by giving notice thereof to SCIENTIST, at ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇; ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, at any time during the primary period
front the date of this instrument until 12 o'clock ant, Oct 15,1997. If SPONSOR
provides a $10,000 grant to the UB Foundation under the terms described in
Section TWO paragraph 1 this agreement will remain in effect until 12 o'clock
ant, Dec 31, 1997.
The OPTION may also be extended until March 27, 1998 by SPONSOR giving SCIENTIST
written notice of extension prior to the TERMINATION of the primary period, and
paying to SCIENTIST at the time of notice, the additional consideration of One
Hundred Thousand Dollars ($100,000).
Executed in duplicate on __________________
_________________________ (Signature of SCIENTIST)
_________________________ (Signature of SPONSOR)
▇▇▇▇ ▇. ▇▇▇▇▇
President and CEO, OmniCorder Technologies, Inc.
AMENDMENT
In consideration of good and valuable services, including extensive efforts by
SPONSOR to market the technology of Dynamic Area Telethermometry, and the
consideration of One Dollar ($1.00), paid to SCIENTIST, receipt of which is
hereby acknowledged, SCIENTIST hereby gives and grants to SPONSOR an amendment
to:
SECTION FIVE: PERIOD OF AGREEMENT AND EXTENSION:
The sentence pertaining to the date of the primary period shall be amended to
read; "any time during the primary period from the date of this instrument until
12 o'clock am, September 15, 1997".
SECTION TWO: ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇):
with the right to pursue other professional activities, so long as said
activities do not inhibit or interfere with his responsibilities as an employee
or Board of Directors member. In any event, these other professional activities
shall not consume more than forty percent of SCIENTIST's normal workweek;
Executed in duplicate on __________________
_________________________ (Signature of SCIENTIST)
_________________________ (Signature of SPONSOR)
▇▇▇▇ ▇. ▇▇▇▇▇
President and CEO, OmniCorder Technologies, Inc.
AMENDMENT
In consideration of good and valuable services, including extensive efforts by
SPONSOR to market the technology of Dynamic Area Telethermometry, and the
consideration of One Dollar ($1.00), paid to SCIENTIST, receipt of which is
hereby acknowledged, SCIENTIST mat SPONSOR hereby agree to amend and insists
certain sections of SECTION TWO and all of SECTION FIVE as follows:
TWO: OTHER GOOD AND VALUABLE CONSIDERATIONS:
2. The SPONSOR shall provide the SCIENTIST with the use, at the earliest
possible date, but within 12 months following die exercise at this
OPTION, and for the period of the GRANT, of an infrared camera
manufactured by "Amber Company" which utilizes a Quantum Well Infrared
Photodetector developed by the "Jet Propulsion Laboratory" in Pasadena
CA, or a device with substantially the same performance specifications
("DEVICE"). The SPONSOR will make every effort to make the DEVICE
available to the SCIENTIST at the earliest date. The title to the
camera will be transferred to AMARA Inc. after a period alone year
with the understanding that the camera will be used for research only
but not for applications in the area of breast cancer, melanoma, or
diabetes. In the event of TERMINATION or GRANT REFUSAL or INCAPACITY
the SPONSOR shall be relieved of the requirements of this paragraph,
which shall not, in anyway, affect the validity of the transfer of the
LICENSE to the SPONSOR or the SPONSOR's ownership of the LICENSE.
5. Upon the resignation of the SCIENTIST from the Stale University of New
York at Buffalo (S.U.N.Y.) SPONSOR shall offer an employment contract
("CONTRACT") to SCIENTIST with the title and responsibilities of Vice
President of Research and Development and Chief Scientific Officer and
SPONSOR shall provide the SCIENTIST; (i) with monetary compensation at
a gross monthly rate of $14,000. This figure shall be inclusive of all
payroll and benefit related expenses; (ii) with the right to pursue
other professional activities, so long as said activities do not
inhibit or interfere with his responsibilities as an employee or Board
of Directors member. In any event, these other professional activities
shall not consume more than forty percent of SCIENTIST's normal
workweek and will not be conducted in the area of breast cancer,
melanoma or diabetes; (iii) with this CONTRACT having a duration of
not less than five years. In the event that SCIENTIST becomes an
employee of SPONSOR before the consumption of all GRANT funds, all
unexpended GRANT funds will be applied to the research budget of
SPONSOR's Research and Development Department of which SCIENTIST will
head under this CONTRACT. The INCAPACITY of the SCIENTIST to accept
the CONTRACT as described herein, shall not, in anyway, affect the
validity of the transfer of the LICENSE to the SPONSOR or die
SPONSOR's ownership of the LICENSE.
FIVE: PERIOD OF AGREEMENT AND EXTENSION:
This AGREEMENT may be exercised by giving notice thereof to SCIENTIST, at ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, at any time during the primary period
from the date of this instrument until 12 o'clock am, Oct 15, 1997. If SPONSOR
provides a $10,000 grant to the UB Foundation under the terms described in
Section TWO paragraph 1 this agreement will remain in effect until 12 o'clock
am, Dec 31, 1997.
The OPTION may also be extended until March 27, 1995 by SPONSOR giving SCIENTIST
written notice of extension prior to the TERMINATION of the primary period, and
paying to SCIENTIST at the time of notice, the additional consideration of One
Hundred Thousand Dollars ($100,000).
Executed in duplicate on __________________
_________________________ (Signature of SCIENTIST)
_________________________ (Signature of SPONSOR)
▇▇▇▇ ▇. ▇▇▇▇▇
President and CEO, OmniCorder Technologies, Inc.
OMNICORDER ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TECHNOLOGIES, INC. Tel. ▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
March 19, 1998
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Ph.D.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇▇▇,
By way of this letter I am confirming OmniCorder Technologies' ("OCT")
intention to immediately exercise the option entitled "Option Agreement to
Purchase Exclusive License to Use Patent Rights" (the "Option Agreement")
originally executed on March 19 1997. As we discussed, OCT will be transferring
funds to the UB Foundation in the amount of $300,000 (three hundred thousand
dollars). The March 3rd letter to OCT from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of the U.B.
Foundation satisfies the requirements of Section 2; Paragraph 1; Subparagraphs
(i), (ii), and (iii) and dispenses with the need described in Section 2:
Paragraph 1 for an escrow agent. However, the letter requires that you do not
use University Facilities to conduct this research and it is understood that you
will not use University Facilities to conduct this OCT sponsored research at any
time so as not to create any claims of ownership of any intellectual property or
products arising out of it by the University of Buffalo or the UB Foundation.
An additional $35,000 (thirty-five thousand dollars) will be made payable
to Sisters Hospital in Buffalo New York, which ▇▇▇▇ be serving as your primary
R&D site as soon as we receive documentation from them indicating that they are
ready, willing, and able to function as a site for this research, ▇▇▇▇ match
OCT's funding with a $35,000 contribution to your research project, and will
waive any rights of ownership as stipulated in the Option Agreement in the
aforementioned Section 2; Paragraph 1. I'm also enclosing with this letter a
check in the amount of $50,000 (fifty thousand dollars) made payable to AMARA
Inc.
Added to previous funds provided to the UB Foundation, these new funds will
make a total of $495,000 (four hundred and ninety five thousand dollars)
provided by OCT to fund your research using Dynamic Area Telethermometry. As we
recently agreed verbally these funds Will completely satisfy Section 2
Paragraphs One and Three in the Option Agreement which refer to funding
requirements in order to exercise the Option Agreement.
You also know that we are presently building an infrared camera being
manufactured by SE-1R Corp., which utilizes a quantum well photodetector
developed by Lockheed ▇▇▇▇▇▇ Corporation. The delivery of this camera, which we
expect in the next few weeks, will satisfy Section 2 Paragraph 2 of the Option
Agreement. As agreed in the last amendment to the original Option Agreement, OCT
Will transfer title of this camera to you one year following exercise of the
Option Agreement. The detector in this camera, which is on loan to OCT from
Lockheed ▇▇▇▇▇▇, ▇▇▇▇ either be purchased or replaced with similar detector by
that time.
The attorneys will be sending three documents, which when executed by you,
will effect the transfer to you of the equivalent of twenty percent of OCT's
equity, as calculated prior to the investment made by new investors (or 200,000
shares of stock in OCT). This will satisfy the conditions set forth in Section 1
of the Agreement.
I would very much like you to accept a seat on the Board of Directors of
OCT, but I understand the reasons for you not doing so at this time. I hope
you'll be able to participate on the board in an unofficial capacity and
possibly consider accepting the board seat at some later date. You acknowledge
that the board seat has been offered, as required in Section 2 Paragraph 4, and
that you have decided to decline it. Finally, we are prepared, at your request,
to provide you with an employment contract upon your resignation from the State
University of New York at Buffalo, as stipulated in Section 2 Paragraph 5.
Upon your acceptance of the terms described in this letter, the execution
of the three stock transfer related agreements mentioned above, the receipt of
the $300,000 check by the UB Foundation made payable to them, the receipt by you
of the $50,000 check made payable to AMARA. and the issuance of the Company's
stock to you, the License transfer as described in Section 6 of the Option
Agreement shall be considered fully effected. We don't anticipate the need to
exercise a more formal agreement unless required by a funding source, in which
case you will agree to exercise that agreement which will be based upon the same
terms described in the Option Agreement and this letter.
Sincerely,
▇▇▇▇ ▇. ▇▇▇▇▇
President and CEO
Accepted and Agreed:
_____________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ Date
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK: IAS PART 31
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OMNICORDER TECHNOLOGIES, INC., : Index No. 01-06729
:
Plaintiff, : STIPULATION
:
-against- : Assigned to:
: Justice ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ANBAR, :
:
Defendant. :
:
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IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned
attorneys for the parties in this action, as follows:
(a) Pursuant to that certain Settlement Agreement, made as of October 3,
2001 (the "Agreement") (annexed hereto as Exhibit "A"), plaintiff dismisses its
complaint with prejudice and without costs to either party;
(b) Pursuant to the Agreement, defendant dismisses his counterclaims,
including the counterclaim which was previously dismissed by the Court, with
prejudice and without costs to either party;
(c) The execution and entry of this Stipulation shall be deemed to be the
Court's approval of the Agreement annexed hereto and submitted herewith.
Dated: Uniondale, New York
October 3, 2001
KAVINOKY & ▇▇▇▇ LLP ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
By:_________________________________ By:_________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attorneys for Defendant Attorneys for Plaintiff
▇▇▇▇▇▇▇ ▇▇▇▇▇ OmniCorder Technologies, Inc.
S O O R D E R E D:
----------------------------------
▇▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, J.S.C.
Dated: October __, 2001
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Settlement Agreement") is entered into as
of this 3rd day of October, 2001, by and between OmniCorder Technologies, Inc.,
a Delaware corporation with its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("OmniCorder"), and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual
residing at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Anbar").
WHEREAS, OmniCorder has filed, inter alia, a Summons With Notice, Amended
Summons and a Complaint for a permanent injunction, declaratory judgment and
damages and an Order to Show Cause and Motion for a Preliminary Injunction with
the Supreme Court of the State of New York, County of Suffolk, encaptioned
OmniCorder Technologies, Inc. v. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Index No. 01-06729 (the
"Action"), requesting the Court to enjoin and restrain Anbar, his agents.
employees, attorneys and any other persons acting on his behalf from:
terminating, attempting to terminate, or otherwise interfering with the
exclusive license of OmniCorder to use certain patented cancer screening
technology;
WHEREAS, Anbar has filed, inter alia, affidavits, a Memorandum of Law in
Opposition to Plaintiffs Motion for a Preliminary Injunction, as well as an
Answer and an Amended Answer to Plaintiffs Summons and Complaint, together with
Counterclaims against OmniCorder (collectively, the "Answer and Counterclaims");
and
WHEREAS, the parties hereto now desire to settle and dispose of the Action
and the Answer and Counterclaims (the Action and the Answer and Counterclaims
are hereinafter referred to collectively as the "Action") solely to avoid the
costs and inconvenience associated with litigation, and without any admission of
fault or liability.
NOW THEREFORE, in consideration of the execution of this Settlement
Agreement and the mutual promises contained herein, the parties hereto agree as
follows:
1. CONTINUED EFFECT OF OPTION AGREEMENT TO PURCHASE EXCLUSIVE LICENSE TO
USE PATENT RIGHTS. The parties hereto hereby agree that the Option Agreement to
Purchase Exclusive License to Use Patent Rights dated March 19, 1997, as
heretofore amended and supplemented by the Amendments dated July 23, 1997 and
September 13, 1997, and the Letter Agreement dated March 19, 1998 (collectively,
the "License Agreement"), is, and shall remain in full force and effect as of
the date hereof, except as certain of the terms thereof shall have been
expressly modified by this Settlement Agreement and that OmniCorder has duly
exercised its right to purchase, and has in fact purchased, the License defined
and referred to therein.
2. WITHDRAWAL OF NOTICE OF TERMINATION WITH PREJUDICE; MUTUAL RELEASES.
Anbar hereby irrevocably withdraws the Notice of Termination, dated February 28,
2001, and irrevocably waives and relinquishes any and all claims, or right to
claim, that OmniCorder breached the terms of, or otherwise defaulted in any of
its obligations under the License Agreement for, upon or by reason of any
matter, cause or thing whatsoever, whether known or unknown, from the beginning
of the world through and including the date hereof, including, but not limited
to, any and all of the matters identified in the Notice of Termination or that
certain letter dated June 30, 2000 from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. to OmniCorder. It
is specifically agreed and understood that the foregoing release shall not, nor
is it intended to, release OmniCorder from its obligation to pay to Anbar the
Royalty due under the License Agreement on February 1, 2002 for DAT Breast
Cancer Screening Systems installed by OmniCorder during the year ended December
31, 2001 or any future rights of Anbar which may arise in his capacity as a
shareholder of OmniCorder. In this regard, Anbar acknowledges and agrees that
the License Agreement does not afford him any pre-emptive rights or any other
guarantee that he will remain a 20% shareholder of OmniCorder, and OmniCorder
acknowledges that Anbar currently holds
2
1,320,000 shares, or 14.42% of the outstanding shares of common stock of
OmniCorder, being the only class of stock outstanding.
OmniCorder hereby irrevocably releases and relinquishes any and all claims
or right to claim, that Anbar breached the terms of or otherwise defaulted in
any of his obligations under the License Agreement for, upon or by reason of any
matter, cause or thing whatsoever, whether known or unknown from the beginning
of the world through and including the date hereof.
3. SATISFACTION OF SECTION TWO OBLIGATIONS. Subject to the provisions of
Paragraph 5 hereof, the parties hereto hereby irrevocably agree that OmniCorder
has complied with all of its obligations under Section "TWO: OTHER GOOD AND
VALUABLE CONSIDERATION" ("Section TWO") of the License Agreement which were
required to be performed by OmniCorder through and including the date hereof,
including, without limitation, all funds to be provided and spent under the
GRANT (as defined in the License Agreement) and all property and equipment
referred to therein. The parties hereby also further agree that the provisions
of such Section TWO shall have no further force or effect. As such. Anbar hereby
irrevocably waives any and all obligations of OmniCorder which could have
conceivably arisen under such Section TWO from and after the date hereof,
including, without limitation, any and all obligations which could have arisen
under subparagraphs 4 and 5 thereof.
4. PAYMENT FOR EACH DAT BREAST CANCER SCREENING SYSTEM. For purposes of
clarity and the avoidance of any future disputes between the parties hereto
relating to the License Agreement, the parties hereto agree that for the
purposes of determining whether the $300 fee contemplated by Section ONE of the
License Agreement is due and payable in respect of any installed DAT Breast
Cancer Screening System (the "System"), the term "a client's site" as used in
the License Agreement shall mean and refer to only those installations at which
OCT derives
3
any revenues from payments made to it by the user of the System at such
installation, and shall in no event include or refer to any installations of the
System for research, System testing, charitable purposes or any purposes other
than breast cancer or diabetes screening. The parties further agree that
OmniCorder shall, together with any such annual Royalty, provide Anbar with a
Royalty report setting forth, in reasonable, verifiable detail, the basis for
the calculation of the Royalty due to Anbar.
5. TRANSFER OF EQUIPMENT TO SCHOOL OF MEDICINE. OmniCorder hereby
irrevocably sells, assigns and transfers, as is, to the School of Medicine,
SUNY-Buffalo, all of its right, title and interest in and to the one infra-red
camera, one temperature calibration unit and one macro lens heretofore provided
to Anbar. Anbar will, on reasonable notice, during business hours, at a mutually
convenient time, within 10 days of the date hereof, make available for
inspection by and delivery to OmniCorder's designated representatives in Buffalo
the second infra-red camera, the temperature calibration unit and the 50 mm
lens, all of which were provided to Anbar by OmniCorder under the Grant. Anbar
represents and warrants to OmniCorder that to the best his knowledge such
equipment is in working order. As used in the foregoing sentence, the phrase
"working order" shall mean that such equipment functions in substantial
compliance with its specifications. If OmniCorder's designated representatives
determine in good faith that the equipment is not in "working order," then such
designated representatives shall have the right to substitute for such
equipment, which is not in "working order," a like item of equipment hereinabove
designated as equipment to be transferred to the School of Medicine. In the
event of such substitution, the School of Medicine shall rake title to the
equipment previously provided to Anbar other than the equipment selected for
substitution by OmniCorder, if any; title to the
4
remaining group of the equipment. including that selected for substitution
by OmniCorder, shall reside with OmniCorder.
6. EXCLUSIVE BASES TO TERMINATE LICENSE. In order to limit any future
disputes between the parties relating to the License Agreement, the parties
hereto agree that notwithstanding anything to the contrary set forth in the
License Agreement, the sole and exclusive bases under which Anbar may in the
future seek to terminate the License Agreement by reason of an alleged future
default by OmniCorder under same shall be by reason of either: (1) the failure
by OmniCorder to pay the $300 fee for each complete DAT Breast Cancer Screening
System installed at a client site contemplated by Section ONE of the License
Agreement, as amended and clarified by Section 4 of this Settlement Agreement;
(2) the abandonment of License by OmniCorder as contemplated by Section FOUR of
the License Agreement; (3) the failure of OmniCorder to permit Anbar to inspect
its books and records, in accordance with Section TEN of the License Agreement;
or (4) OmniCorder's breach of its obligation to hold harmless and indemnify
Anbar, in accordance with the second to last paragraph of the License Agreement,
in respect of any third party claims which may arise as a result of OmniCorder's
use of the System as a medical screening device. Anbar acknowledges and agrees
that OmniCorder has no obligation to indemnify him in respect of his use of the
System.
Notwithstanding anything to the contrary contained in the License
Agreement, any and all other future alleged defaults of the License Agreement,
however arising, on any other legal, factual or other basis, are hereby
irrevocably waived by Anbar as being a basis for terminating the License
Agreement. By this waiver, Anbar, however, does not in any respect waive his
future right to enforce any or all of his rights under the License Agreement;
but rather he waives
5
only the right to use any such other alleged defaults as a basis for
seeking the termination of the License Agreement.
In addition, Anbar irrevocably agrees that in the event of any alleged
default by reason of: (1) a failure to pay the $300 fee; (2) the abandonment of
the License; (3) the failure of OmniCorder to permit Anbar to inspect its books
and records in accordance with Section TEN of the License Agreement; or (4) the
breach of the obligation to hold harmless and indemnify Anbar, in accordance
with the second to last paragraph of the License Agreement, all as above
contemplated, Anbar shall provide OmniCorder with written notice of such default
and an opportunity to cure same for a period of no less than 45 days after
receipt of such notice of default. Moreover, Anbar further irrevocably waives
any right to unilaterally terminate the License Agreement should any such
alleged default continue beyond said 45 day cure period; rather the parties
irrevocably agree to arbitrate their dispute with respect to any such alleged
default in accordance with the procedures set forth in Section 7 hereof,
granting to the arbitrator the sole and exclusive right to determine whether or
not the alleged default has, in fact, occurred. If OmniCorder determines in good
faith that a default shall not have occurred and the arbitrator finds in favor
of Anbar, OmniCorder shall be afforded a reasonable opportunity to cure same
following such decision (the "2nd Cure Period"). If the arbitrator finds that a
default did occur and that OmniCorder lacked a reasonable basis for taking the
action or omitting to take an action that resulted in the default, then
OmniCorder shall pay Anbar's reasonable attorney's fees and disbursements
incurred in connection with such arbitration; if the arbitrator finds that a
default did not occur and that Anbar lacked a reasonable basis for claiming such
default, then Anbar shall pay OmniCorder's reasonable attorney's fees and
disbursements incurred in connection with such arbitration; in all other cases
the parties shall bear their respective attorneys fees and
6
disbursements. While any such arbitration proceeding is continuing and
until the expiration of the 2nd Cure Period, the License Agreement shall remain
in full force and effect.
7. ARBITRATION. Any dispute, controversy or claim arising out of or in
connection with this Settlement Agreement, or the License Agreement shall be
determined and settled by binding arbitration in the following County in the
State of New York conducted by the American Arbitration Association (the "AAA")
in accordance with the then existing commercial arbitration rules, regulations,
practices and procedures of the AAA: Erie County for all arbitrations commenced
by Anbar and Suffolk County for all arbitrations commenced by OmniCorder;
provided, however, that all arbitrations involving a dispute pertaining to the
jurisdiction of or a determination by the Sub-Committee (as defined in paragraph
9 hereof), shall be commenced only in Suffolk County. The arbitration
proceedings shall be conducted before a single arbitrator who will be selected
by agreement of the parties from a list provided by the AAA. If the parties
cannot agree upon the selection of an arbitrator, a neutral arbitrator shall be
appointed by the AAA from a list of arbitrators acceptable to OmniCorder and
Anbar. No action of law or suit in equity based upon any claim arising out of or
related to this Settlement Agreement shall be instituted in any court except (i)
an action to compel arbitration pursuant to this paragraph; (ii) an action to
enforce the arbitration award rendered in accordance with this paragraph; or
(iii) an action brought in aid of arbitration pursuant to Article 75 of New
York's Civil Practice Law and Rules. Any decision rendered by the arbitrator
shall be final, conclusive and binding upon the parties to the arbitration and
may be enforced by the judgment and order of the Supreme Court of the State of
New York, and the parties hereto hereby waive any objection to such jurisdiction
or venue in any such proceeding commenced in such court. Except as hereinbefore
provided, OmniCorder and Anbar will each pay one-half of the arbitrator's fees.
7
8. OmniCorder's Right to Sub-License. Section "NINE: SUB-LICENSING"
("Section NINE") of the License Agreement is hereby amended to read in its
entirety as follows:
"SPONSOR has the right to sub-license the LICENSE to any and all parties
freely and without restriction, except that if SPONSOR shall seek to
sub-license the LICENSE to any present or former officer or director of
SPONSOR, or any affiliate thereof, then the terms and conditions of such
sub-license shall be on terms no less favorable to SPONSOR than could be
obtained by unaffiliated third parties. In addition, any sub-license to
such related party shall not be effected unless it is approved by a
majority of SPONSOR's disinterested directors. SPONSOR acknowledges and
agrees that SPONSOR's obligation to pay the Royalty Fee due to SCIENTIST
under SECTION ONE above shall accrue to SCIENTIST in respect of any DAT
Breast Cancer Screening System ("System") installed at client sites by
reason of any sub-licenses and that all sub-license agreements shall
include a provision obligating the sub-licensee to report any and all
Systems installed at client sites of the SPONSOR or the sub-licensee which
report shall be made to SCIENTIST by SPONSOR with payment of the requisite
Royalty Fee, annually on February lst of each year. SPONSOR shall send to
Anbar a copy of each sub-license agreement upon its execution.
9. RIGHT TO USE PATENT. OmniCorder hereby grants to Anbar a non-exclusive,
non-transferable, world-wide, perpetual, royalty-free license to use the patent
previously transferred by Anbar to OmniCorder pursuant to the License Agreement
for his research purposes only and not for commercialization. In this regard,
Anbar agrees that in advance of applying for any research grant or third-party
funding for work under the patent, he will first provide OmniCorder with written
notice of such intent and if OmniCorder advises him in writing within 14 days
9
thereof that it intends to seek the same source of funding, Anbar will refrain
from seeking such funding. Anbar further agrees that he will not publish or
disclose in any manner the results of any such research under the patent to any
third party other than pursuant to the following procedure. Anbar will first
disclose the results, together with all other related information necessary to
make an informed decision, to a three-person subcommittee of OmniCorder's
Scientific Advisory Board (the "Sub-Committee"), initially consisting of ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. Anbar covenants and agrees to
use his best efforts to accelerate the Sub-Committee's review process and to
accede to any reasonable request of the Sub-Committee in connection therewith.
If a majority of such Sub-Committee members agree with the scientific merit of
Anbar's results or are unable to reach a decision as to whether or not they
agree with the scientific merit of his results within 30 days after receiving a
copy of such results, together with the necessary related information
contemplated above, Anbar may proceed, if he so desires, to disclose and/or
publish his results in a scientific journal or at a scientific forum. If a
majority of such Sub-Committee members do not agree with the scientific merit of
his results, Anbar shall not publish or otherwise disclose in any manner the
results of such research. In the event that any of the Sub-Committee members are
unable or otherwise decline to serve in that capacity in the future, a
replacement Sub-Committee member, who shall not be a consultant to or employee
of OmniCorder, shall be chosen by the remaining Sub-Committee members from
OmniCorder's Scientific Advisory Board, subject to OmniCorder's and Anbar's
consent, which will not be unreasonably withheld or delayed. If Anbar violates
the non-disclosure provisions of this Section 9, OmniCorder shall have the right
to terminate the license herein granted to Anbar. Anbar hereby represents and
warrants to OmniCorder that there are four (4) scientific articles currently in
the process of being published by him regarding the patent
9
referred to above and that none of such articles mention OmniCorder, its
officers, directors or employees, the License or its products. As a courtesy to
OmniCorder, Anbar agrees to provide OmniCorder with copies of these articles as
soon as they are published. Based solely on such representation and covenant,
OmniCorder agrees that the publication of such articles shall not constitute a
violation of Anbar's obligations under this Section 9.
10. NO DISPARAGING STATEMENTS. Anbar, on the one hand, and OmniCorder,
including its officers, directors, employees and agents, on the other, agree not
to libel, slander or defame each other, or anyone associated with them. With
respect to the association with Anbar, OmniCorder agrees not to refer to Anbar
as anything but a founding scientist and/or shareholder.
11. WITHDRAWAL OF ALL ACTIONS. Simultaneously with the execution of this
Settlement Agreement, the parties hereto shall execute a stipulation with a "so
ordered" endorsement (the "Stipulation") to be signed and entered by the Court,
forthwith. A copy of this Settlement Agreement shall be annexed to the
Stipulation. The Stipulation and this Settlement Agreement shall be construed
and interpreted as one document for all purposes. The Court's "so ordered"
endorsement of the Stipulation shall be deemed its approval of this Settlement
Agreement. The Stipulation also shall contain provisions dismissing with
prejudice and without costs the parties' causes of action and counterclaims,
including those counterclaims which have been dismissed, in the Action. Anbar
shall withdraw all Notices of Appeal which he has filed in the Action. The
parties hereto represent and warrant that they shall not initiate or file any
litigation, complaint, cause of action, claim, counterclaim or cross-claim
against each other which has as its basis the facts and/or the causes of action
or counterclaims alleged in the Action.
10
12. MODIFICATION. No modification, variation, addition to or amendment of
this Settlement Agreement and no waiver of any right under this Settlement
Agreement shall be of Agreement.
13. LEGAL FEES. The parties hereto agree that all legal fees and other
expenses incurred in connection with the Action and this Settlement Agreement
shall be paid by the party incurring such expenses.
14. HEADINGS. The headings of the sections herein are for convenience of
reference only and are not to be considered in construing this Settlement
Agreement.
15. SEVERABILITY. If any provision of this Settlement Agreement is deemed
invalid or unenforceable by a competent court of law, that invalidity or
unenforceability shall not affect any other provision of this Settlement
Agreement and the rest of the Settlement Agreement shall nevertheless remain in
full force and effect as though the invalid or unenforceable provision was not
contained in the original Settlement Agreement.
16. NOTICES. All notices, requests, demands and other communications
hereunder shall be hand-delivered (with written receipt therefore) or sent by
U.S. certified mail, return receipt requested, or by a reputable overnight
carrier to the following:
(a) Any notice to OmniCorder shall be addressed as follows:
▇▇. ▇▇▇▇ ▇▇▇▇▇
OmniCorder Technologies, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & Eilen LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
11
(b) Any notice to Anbar shall be addressed as follows:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Kavinoky & ▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
17. ENTIRE AGREEMENT. This Settlement Agreement, along with the License
Agreement, as modified by this Settlement Agreement, constitutes the entire
agreement between the parties and supersedes all prior agreements, negotiations
and understandings between them pertaining to the subject matter thereof, except
that the following four agreements shall also remain in full force and effect:
(i) the Stockholders' Agreement among OmniCorder, Dr. Anbar and other OmniCorder
stockholders; (ii) the Confidentiality Agreement between OmniCorder and Dr.
Anbar; (iii) the Stock Purchase Agreement between OmniCorder and Dr. Anbar; and
(iv) the Purchaser's Questionnaire completed by Dr. Anbar. This Settlement
Agreement may not be modified except by a writing signed by all parties. Nothing
in this Settlement Agreement shall, or is intended to, effect the rights of the
State University of New York at Buffalo under whatever agreements it has with
OmniCorder.
18. COUNTERPARTS. This Settlement Agreement may be executed in fax
counterparts, each of which shall be deemed an original for all purposes and
both of which shall together constitute one and the same instrument. This
Settlement Agreement and the rights of the parties hereto shall be construed
according to the internal laws of the State of New York without regard to
conflict of laws. The terms of this Settlement Agreement shall be deemed
severable.
19. BINDING IMPACT. This Settlement Agreement shall bind and inure to the
benefit of the parties, their respective affiliates, subsidiaries, predecessors,
successors, assigns, agents, officers, directors, shareholders, employees and
legal representatives, and for any other partnerships, corporations, sole
proprietorships or other entities owned or controlled by any of them.
OMNICORDER TECHNOLOGIES, INC.
By: _________________________________ _________________________________
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
President
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
On this 3rd day of October, 2001, before me appeared ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, to
me known and personally known to me to be the person described in and who in my
presence executed the within Settlement Agreement and in my presence
acknowledged to me that he executed the same.
------------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
On this 3rd day of October, 2001, before me appeared ▇▇▇▇ ▇▇▇▇▇ to me known
who, being duly sworn, did depose and say that he is the President of OmniCorder
Technologies, Inc., the corporation described in, and which executed the
foregoing Settlement Agreement; that he was authorized by the corporation to
execute the within Settlement Agreement; and who in my presence acknowledged to
me that he executed the same.
------------------------------------
NOTARY PUBLIC