EXHIBIT 7
PURCHASE AND SETTLEMENT AGREEMENT
This purchase and settlement agreement is entered into this 6th day of
November, 1995,, by and between Xxxx X. Xxxxx and Xxxx X. Xxxxx, M.D.
(hereinafter referred to as "Sellers") and InMedica Development Corporation, a
Utah corporation (hereinafter referred to as "Buyer").
Whereas, Sellers have developed certain non-invasive hematocrit measuring
technology (hereinafter referred to as "the technology") and Buyer desires to
purchase the technology.
Wherefore, the parties agree as follows:
Sellers agree to sell the technology to Buyer in consideration of the sum of
$200,000, including a down payment of $98,000, certified funds, paid jointly to
the Sellers upon execution of this agreement by all parties hereto and a
promissory note executed by the Buyer's duly authorized representative, and
personally guaranteed by Buyer's president, Xxxxx X. Xxxxx, payable jointly to
the Sellers for a total sum of $102,000, with interest at the rate of 10% per
annum, payable in four installments, with the first installment of $25,500 due
on or before January 15, 1996, the second installment of $25,500 due on or
before April 15, 1996, the third installment of $25,500 due on or before July
15, 1996, and the final installment of $25,500 together with accrued interest
due on or before October 15, 1996.
Upon receipt of the down payment, Xxxx X. Xxxxx will deliver the portable
prototype to Xx. Xxxx Xxxxxxxx or Buyer's other duly designated representative.
During the two week period immediately following the delivery of the prototype
Xxxx X. Xxxxx will deliver all prototypes, notebooks, faxes, test date,
schematic drawings, circuit board artwork, and software source code relating to
this project to Xx. Xxxxxxxx or Buyer's other duly designated representative.
During this two week period, Xxxx X. Xxxxx will provide up to 56 hours of free
consultation to explain the theory, discuss findings, and answer any questions
to the best of his ability.
Following the two-week period described above, Xxxx X. Xxxxx will provide
Buyer up to 8 hours of consultation per week at the rate of $80.00 per hour to
prepare patent materials, answer questions and/or provide general engineering
services such as software or hardware modifications. Buyer agrees that payments
to Xxxx X. Xxxxx for the foregoing consulting services shall be paid in full no
more than 5 working days after receipt of his monthly
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invoice.
In further consideration of the payments made and obligations undertaken by
Buyer, herein, and the resolution of the dispute referred to below, Sellers each
individually covenant that neither of them, jointly or separately, will
disclose, in any fashion, to any person or entity, any of the non-invasive
hematocrit measurement technology developed by them to any person for a period
of five years from the date hereof. Further, Sellers each individually and
jointly covenant not to compete with Buyer or its subsidiaries, ventures,
assigns, successors, or contractors in any fashion, directly or indirectly, in
the business of research, development, marketing, manufacturing or sale of any
and all devices, prototypes, systems, hardware, software or other products
intended to measure hematocrit or to measure other phenomenon in living
organisms based on impedance technology or theory. This Non-Competition and
Non-Disclosure agreement shall continue in effect for a period of five years
from the date hereof and is effective worldwide. Further, Sellers, jointly and
severally, agree that they will not accept employment with, or act as
consultant, contractor, advisor, or in any other capacity for, a competitor of
Buyer, or enter into competition with Buyer, either alone or through an entity
owned or managed in whole or in part by Sellers. The term "competitor" as used
in this paragraph means any entity engaged in research, development,
manufacture, marketing or sale of any device using impedance technology or
theory.
The parties hereto have agreed that the following factual information is
relevant to a consideration of the reasonableness of the foregoing Non-
competition and Non-Disclosure Covenants: (a) InMedica has, for in excess of
five years, been engaged in the research and development of impedance theory and
a device capable of measuring hematocrit, without the necessity of a needle
stick to draw blood for the measurement; (b) during June, 1994, InMedica
personnel interviewed Xxxxx, at Xxxxx'x request, to consider Xxxxx to be hired
as an engineer to pursue the hematocrit research further for InMedica; at the
time, Xxxxx signed a non-disclosure agreement with InMedica which was effective
for a period of five years; (c) when InMedica did not hire Xxxxx, Xxxxx and
Xxxxx made a separate arrangement and pursued work on hematocrit research,
producing a device or prototype to measure hematocrit; (d) a dispute
subsequently arose between InMedica, Xxxxx and Xxxxx as to the ownership of the
work done by Xxxxx and Xxxxx and the parties have agreed to the terms and
conditions of this Agreement in order to fully compromise and settle their
respective claims; (e) neither Xxxxx nor Xxxxx has ever previously conducted
research on impedance theory or the measure of hematocrit non-invasively; Xxxxx
is a medical doctor and Xxxxx is an electrical engineer, both having followed
professions other than research and development of
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medical technology devices (except that Xxxxx was President of InMedica for a
time, while InMedica was engaged in such research and development, although he
continued to work full time as an anesthesiologist); neither Xxxxx nor Xxxxx
will consequently be impaired in any way in pursuing their careers by entering
into this Non-Competition and Non-Disclosure agreement and neither has any
necessity or intent to compete with InMedica, directly or indirectly, in the
future; (f) InMedica has had patent applications pending on non-invasive
hematocrit inventions for several years, based on its research and trade
secrets; and (h) the technology to measure hematocrit non-invasively is
potentially a significant medical advance which InMedica has always intended to
market worldwide, if and when warranted, and the parties agree that the world-
wide ban on competition by Xxxxx and Xxxxx is consequently reasonable.
The parties have attempted to limit the rights of Xxxxx and Xxxxx to compete
to the extent necessary to protect InMedica from unfair competition and the
parties are in agreement that the Non-Competition and Non-Disclosure covenants
are reasonable and that the foregoing information is factual, complete and
accurate.
As further consideration for this purchase and settlement agreement Buyer,
together with its successors and assigns, hereby releases and forever discharges
any and all claims and causes of action it may have against both Xxxx X. Xxxxx
and Xxxx X. Xxxxx, M.D. arising from the development of the technology,
including, but not limited to, breach of any non-disclosure agreement and/or
breach of any fiduciary duty owed to the Buyer. Further, Buyer agrees to
indemnify and hold Xxxx X. Xxxxx and Xxxx X. Xxxxx, or either of them, harmless
from and against any and all claims and or causes of action brought against them
arising out of the development and or sale of the technology to the Buyer.
This agreement contains the entire agreement of the parties, and shall not be
modified except by an instrument in writing executed by all parties hereto.
/s/ Xxxx X. Xxxxx /s/ Xxxx X. Xxxxx
-------------------------- ----------------------------
Xxxx X. Xxxxx, Seller Xxxx X. Xxxxx, M.D., Seller
[notarizations]
InMedica Development Corporation
By/s/ Xxxxx X. Xxxxx
------------------
Its President
[notarization]
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