SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT DATED AS OF THE 11TH DAY OF MARCH, 1999 BY AND
BETWEEN HUMASCAN INC. A DELAWARE CORPORATION, WITH AN ADDRESS AT X/X XXXXXXX
XXXXXXXXX, 00 XXXXXXXXX XXXX, XXXXXXX, XXX XXXXXX 00000 ("HUMASCAN") AND SCANTEK
MEDICAL, INC. A DELAWARE CORPORATION, WITH AN ADDRESS AT 000 XXXXXX XXXX,
XXXXXXXX, XXX XXXXXX 00000 ("SCANTEK").
W I T N E S SE T H :
WHEREAS, Scantek has licensed to HumaScan the rights to manufacture,
market and sell the BreastAlert(TM) Differential Temperature Sensor
("BreastAlert") pursuant to the Second Amended License Agreement dated as of
October 20, 1995 as amended on February 26, 1996, March 17, 1996, April 29, 1996
and May 31, 1996 and as further amended by the Settlement Agreement dated May
15, 1998 (collectively the "License Agreement");
WHEREAS, HumaScan has failed to pay license fees, royalties and other
sums due to Scantek for the period through January 31, 1999, in the amount of
Seven Hundred Fifty Thousand ($750,000.00) Dollars;
1
WHEREAS, as a result of HumaScan's defaults pursuant to the License
Agreement including, but not limited to, HumaScan's default in paying license
fees, royalties and other sums, Scantek would be able to terminate the License
Agreement;
WHEREAS, HumaScan is indebted to Zigmed Inc. ("Zigmed"), in the amount
of Three Hundred Fifteen Thousand Dollars ($315,000);
WHEREAS, HumaScan and Scantek have agreed to avoid legal proceedings
with respect to the License Agreement and desire to terminate the License
Agreement;
WHEREAS, in connection with the termination of the License Agreement
HumaScan has agreed to transfer to Scantek certain of its assets, including, but
not limited to, those which were utilized in connection with the License
Agreement in order to satisfy its indebtedness to Scantek; and
WHEREAS, pursuant to the cancellation of the License Agreement HumaScan
has ceased conducting its only active business and, as a result, HumaScan
desires to transfer assets which exceed its indebtedness to Scantek, and Scantek
is willing to make a settlement with HumaScan;
NOW, THEREFORE, in consideration of the mutual covenants of
the parties hereinafter set forth, and for other good and valuable
consideration, receipt of which is hereby acknowledged,
2
IT IS AGREED:
1. Recitals. The parties hereby adopt as part of this Agreement each of
the recitals which is contained in the WHEREAS clauses, and agree that such
recitals shall be binding upon the parties hereto by way of contract and not
merely by way of recital or inducement; and such clauses are hereby confirmed
and ratified as being true and accurate by each party as to himself, herself or
itself.
2. Termination of the License Agreement
Scantek and HumaScan agree that, subject to, and as a condition of, the
Closing (hereinafter defined in Article "13" of this Agreement) the License
Agreement shall be terminated and be of no further force and effect, as of the
date of the Closing pursuant to the agreement (the "Termination Agreement") in
the form which is annexed hereto and made part hereof as Exhibit "A".
3. Exchange of General Releases.
Scantek and HumaScan shall exchange general releases at the Closing, in
the forms which are annexed hereto and made a part hereof as Exhibits "B-1" and
"B-2", respectively.
4. Assignment of Assets
At the Closing, HumaScan shall assign to Scantek, upon the terms and
conditions set forth herein (the "Assignment"), the following of its assets
related to the manufacture, marketing and sale of the BreastAlert(TM) (
collectively, the "Assets"):
3
A. the production and manufacturing equipment, furniture, raw
materials, tools, materials, laboratory equipment and inventory, listed on
Exhibit "C" which is annexed hereto and made a part hereof; and
B. all regulatory, clinical, manufacturing, sales, computer and
laboratory data, listed on Exhibit "D" which is annexed hereto and made a part
hereof.
5. Terms of Assignment The parties agree that:
A. HumaScan's indebtedness to Scantek pursuant to the License
Agreement in the amount of Seven Hundred Fifty Thousand ($750,000.00) Dollars
shall be satisfied;
B. HumaScan's indebtedness to Zigmed shall be partially satisfied
by a check in the amount of One Hundred Five Thousand ($105,000) Dollars payable
by Scantek to Zigmed; and
C. At the Closing, HumaScan shall receive the sum of Two Hundred
Thirty Five Thousand ($235,000.00) Dollars payable to HumaScan.
6. Issuance of Shares; Piggy Back Rights
A. As an additional inducement for Scantek to enter into this
Agreement, HumaScan shall issue to Scantek One Hundred Fifty Thousand (150,000)
shares of HumaScan's Common Stock, par value $.01 (the "Scantek Shares"), to be
evidenced by a certificate in the name of Scantek to be delivered to Scantek at
the Closing.
B. At the Closing, to satisfy the balance of HumaScan's
indebtedness to Zigmed of Two Hundred Ten Thousand ($210,000.00) Dollars (which
is Three Hundred Fifteen Thousand
4
($315,000.00) Dollars reduced by One Hundred Five Thousand ($105,000.00) Dollars
to be paid pursuant to Paragraph "B" of Article "5" of this Agreement), HumaScan
shall issue to Zigmed Two Hundred Thousand (200,000) Shares of HumaScan's Common
Stock, par value $.01 (the "Zigmed Shares") to be evidenced by a certificate in
the name of Zigmed to be delivered to Scantek at the Closing.
C. HumaScan agrees that if HumaScan or any successor or assigns
shall at any time seek to register or qualify any of its capital stock or
securities, on its own behalf or on behalf of any shareholder, then on each such
occasion it shall furnish the holders of both the Scantek Shares and Zigmed
Shares with at least fifteen (15) days' written notice thereof and the holders
of the Scantek Shares and Zigmed Shares shall each have the option, without cost
or expense, to include all of the Scantek Shares and/or the Zigmed Shares, as
the case may be, in such registration or qualification. The holders of the
Scantek Shares and/or Zigmed Shares shall exercise the "piggy back rights" under
this Paragraph "C" of this Article "6" of this Agreement by giving written
notice to HumaScan within five (5) days after receipt of the written notice from
HumaScan. All expenses, including, but not limited to, fees and expenses in
connection with the preparation and filing of any registration statement
pursuant to this Paragraph "C" of this Article "6" of this Agreement including
the "piggy back rights" (and any registration or qualification under the
securities or "Blue Sky" laws of states in which the offering will be made under
such registration statement) shall be borne in full by HumaScan. Scantek and
Zigmed agree to provide any information and documents which HumaScan shall
reasonably request for disclosure in the registration statement including, but
not limited to, with respect to its ownership of the Shares and the manner of
disposition. If Scantek and/or Zigmed fail to comply with such request within a
reasonable time after HumaScan's request,
5
HumaScan shall have no obligation hereunder in connection with the registration
for the party which fails to comply.
7. Retention of Liabilities; Indemnification
A. HumaScan shall be solely responsible for the settlement of all
of its liabilities. Scantek shall not assume or be liable for any liabilities or
obligations of HumaScan, whether the same are direct or indirect, fixed,
contingent or otherwise, known or unknown, whether existing as of the date of
this Agreement or arising thereafter.
B. Scantek shall be liable and responsible for the payment of
expenses with respect to the filing and recording of any documents affecting and
relating to the assignment of the Assets, pursuant to this Agreement.
C. Indemnification by HumaScan
(i) In order to induce Scantek to enter into and perform this
Agreement, and knowing that Scantek is relying thereon, HumaScan does hereby
indemnify, protect, defend and save and hold harmless Scantek from and against
any loss resulting to it from all debts and liabilities of HumaScan of any
nature, whether accrued, absolute, contingent, or otherwise.
(ii) The indemnification, which is set forth in this Paragraph
"C" of this Article "7" of this Agreement shall be deemed to include not only
the specific liabilities or obligation with respect to which such indemnity is
provided, but also all reasonable costs, expenses, counsel fees, and expenses of
settlement relating thereto provided such settlement is in accordance with this
Paragraph "C" of this Article "7" of this Agreement, whether or not any such
liability or obligation shall have been reduced to judgment.
6
(iii) If any demand, claim, action or cause of action, suit,
proceeding or investigation is brought against Scantek to which Scantek is
entitled to indemnification by HumaScan pursuant to this Article "7" of this
Agreement, Scantek shall give prompt notice thereof to HumaScan in accordance
with Paragraph "C" of Article "20" of this Agreement which notice shall contain
a reasonably thorough description of the nature and amount of the claim of
indemnification. Upon receipt of such notice, HumaScan shall use all reasonable
efforts to assist in the vigorous defense of any such matter. The failure of
Scantek to notify HumaScan of any such demand, claim, action or cause of action,
suit, proceeding or investigation shall not relieve HumaScan from any liability
which it may have under this Article "7" of this Agreement except to the extent
such failure to notify HumaScan prejudices HumaScan.
(iv) If any demand, claim, action or cause of action, suit,
proceeding or investigation is brought against Scantek for which Scantek intends
to seek indemnity from HumaScan, then Scantek within twenty-one (21) days
following Scantek's receipt of such demand or claim, shall notify HumaScan (the
"Claim Notice"). It is being understood that Scantek shall be entitled to
undertake, conduct and control the defense of such claim or demand and, in its
sole and absolute discretion, to select counsel of its choice. All reasonable
costs and expenses incurred by Scantek in defending such third party claims
shall be paid by HumaScan.
(v) Scantek shall have the right to settle, compromise or
offer to settle or compromise any such claim or demand; provided that exercise
of such right does not result in any agreement or order including, but not
limited to, a consent order, injunction or decree which would restrict the
future activity or conduct of HumaScan; provided, however, that a monetary
settlement shall not be deemed to restrict the future activity or conduct of
HumaScan. Prior to Scantek's settling
7
or compromising any claim or demand, Scantek shall notify HumaScan pursuant to
Paragraph "C" of Article "20" of this Agreement and request HumaScan's consent;
provided, however, that such consent shall not be unreasonably withheld. If
HumaScan fails to provide such consent, Scantek shall have the right to enter
into a settlement or compromise without HumaScan's consent; provided, however,
that if HumaScan can prove that its withholding of such consent was reasonable,
Scantek shall not be entitled to indemnification from HumaScan pursuant to this
Paragraph "C" of this Article "7" of this Agreement.
(vi) Notwithstanding anything contained in this Agreement to
the contrary, no claim may be made with respect to this Paragraph "C" of this
Article "7" of this Agreement unless such claim has been asserted in writing
prior to the date which is six (6) months after the date of Closing; provided,
however, that the aforesaid six (6) month limitation in this Subparagraph "(vi)"
of this Paragraph "C" of this Article "7" of this Agreement shall not be
applicable to any tax obligations of HumaScan. (vii) Scantek agrees that if any
unaffiliated third party agrees to acquire majority ownership of HumaScan within
six (6) months after the date of Closing, Scantek will , upon written request,
consent to waive the indemnification provisions set forth in this Article "7" of
this Agreement; provided, however, that if the closing of such acquisition does
not occur within four (4) months after such written request, Scantek's consent
to waive the indemnification shall be deemed null and void; provided further,
however, that Scantek may withhold its consent for valid and reasonable cause
including, but not limited to, the existence or notice of a claim or liability
against Scantek. None of the foregoing provisions of this Subparagraph "(vii)"
of this Paragraph "C" of this Article "7" of this Agreement shall be applicable
to any tax obligations of HumaScan.
8
8. Rights With Respect to Third Parties.
To the extent that the assignment of any contract, license, lease,
warranty or commitment to Scantek requires the consent of the other party
thereto, HumaScan agrees to obtain same on or prior to the Closing Date.
9. Assignment of Assets.
A. The assignment by HumaScan of the Assets shall be effected by
a form of assignment which shall be in the form annexed hereto and made a part
hereof as Exhibit "E" (the "Assignment") and such other endorsements,
assignments and other good and sufficient instruments of transfer and conveyance
as Scantek shall request and shall be in form and substance satisfactory to
Scantek's counsel.
B. The Assets shall be assigned and transferred on an "as is"
basis from HumaScan without any representations or warranties as to the Assets,
except with respect to title and the existence of no encumbrances.
C. HumaScan shall assign to Scantek at the Closing any and all
warranties currently in effect between HumaScan and third parties with respect
to the Assets.
D. Scantek shall take possession of the Assets as of Closing or
at a date as soon as practicable following the Closing, in the sole and absolute
discretion of Scantek.
E. Scantek shall be liable for sales taxes, if any, with respect
to the assignment of the Assets.
9
10. Representations, Warranties and Covenants of HumaScan.
HumaScan represents, warrants and covenants to Scantek, as follows:
A. Corporate Status.
(i) HumaScan is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with all requisite
power and authority to carry on its business as presently conducted in all
jurisdictions where presently conducted.
(ii) HumaScan does not have any equity interest, as a
shareholder, proprietor, partner, beneficiary, joint venturer or otherwise, in
any corporation, firm, partnership or joint venture.
(iii) A copy of a good standing certificate for HumaScan
issued by the Secretary of State of the State of Delaware is annexed hereto and
made a part hereof as Exhibit "F" and is complete and correct as of the date of
this Agreement.
B. Corporate Authority and Due Authorization. HumaScan has the
full authority, right, power and legal capacity to enter into this Agreement and
to consummate the transactions which are provided for herein. The execution of
this Agreement by HumaScan, its delivery to Scantek, and the consummation by
HumaScan of the transactions which are contemplated herein have been duly
approved and authorized by HumaScan's Board of Directors, which shall be
evidenced by a certified copy of the resolution of HumaScan's Board of Directors
in the form which is annexed hereto and made a part hereof as Exhibit "G" which
shall be delivered at the Closing), and no further authorization is necessary on
the part of HumaScan for the performance and consummation by HumaScan of the
transactions which are contemplated by this Agreement.
10
C. Compliance with the Law and Other Instruments. Except as
otherwise provided in this Agreement and in the Exhibits annexed hereto, the
business and operations of HumaScan have been and are being conducted in all
material respects in accordance with all applicable laws, rules and regulations
of all authorities which affect HumaScan or its properties, assets or businesses
including, but not limited to, the Assets. To the best of its knowledge,
HumaScan owes no sales or use taxes to the New Jersey Department of Taxation.
The performance of this Agreement shall not result in any breach of, or
constitute a default under, or result in the imposition of any lien or
encumbrance upon any property of HumaScan or cause an acceleration under any
arrangement, agreement or other instrument to which HumaScan is a party or by
which any of its assets are bound. HumaScan has performed in all respects all of
its obligations which are, as of the date of this Agreement, required to be
performed by it pursuant to the terms of any such agreement, contract or
commitment which may in any manner effect the Assets or HumaScan's rights
pursuant to the License Agreement. Although HumaScan's representation and
warranty with respect to owing no sales or use taxes to the New Jersey
Department of Taxation is limited by the phrase, "to the best of its knowledge,"
if any sales or use taxes are due to the New Jersey Department of Taxation, then
regardless of HumaScan's knowledge, HumaScan shall be obligated to indemnify
Scantek pursuant to Article "7" of this Agreement.
D. Value of the Assets The estimated acquisition cost to Scantek
was in excess of Two Million Five Hundred Thousand ($2,500,000) Dollars.
E Litigation. There are no legal, administrative, arbitration, or
other proceeding or governmental investigations affecting the Assets or with
respect to any matter with respect to the License Agreement, pending or to its
knowledge threatened, by or against, HumaScan
11
whether or not covered by insurance. Neither HumaScan nor its officers or
directors are subject to any order, writ, injunction, or decree of any Court,
department, agency, or instrumentality, affecting HumaScan.
F. No Approvals. No approval of any governmental authority is
required by HumaScan in connection with the transactions which are provided for
in this Agreement.
G. Broker. HumaScan has not had any dealing with respect to this
transaction with any business broker, firm or salesman, or any person or
corporation, investment banker or financial advisor who is or shall be entitled
to any broker's or finder's fee or any other commission or similar fee with
respect to the transactions provided for in this Agreement.
H. Title. HumaScan represents and warrants that it is the lawful
owner of and has good and marketable title to and has the right to assign and
transfer the Assets to Scantek. HumaScan further represents and warrants that
the Assets are free and clear of all liens, mortgages, pledges, security
interests, restrictions, prior assignments, encumbrances, leases and claims of
any kind or nature whatsoever.
I. Complete Disclosure. No representation or warranty of HumaScan
which is contained in this Agreement, or in a writing furnished or to be
furnished pursuant to this Agreement contains or shall contain any untrue
statement of a material fact, omits or shall omit to state any material fact
which is required to make the statements which are contained herein or therein,
in light of the circumstances under which they were made, not misleading. There
is no material fact relating to the business, affairs, operations, conditions
(financial or otherwise), prospects of HumaScan or the Assets which would
adversely affect same which has not been disclosed to Scantek in this Agreement.
12
J. No Defense. It shall not be a defense to a suit for damages by
Scantek for any misrepresentation or breach of covenant or warranty that Scantek
knew or had reason to know that any covenant, representation or warranty in this
Agreement or documents furnished or to be furnished to Scantek pursuant to this
Agreement contained untrue statements.
K. No Shareholder Approval Scantek acknowledges that HumaScan is
not seeking approval of its shareholders for the transactions contemplated by
this Agreement. The foregoing acknowledgment shall not be deemed to be an
admission that shareholders' approval is required for the transactions
contemplated by this Agreement.
L. Survival of Covenants and Agreements; Limited Survival of
Representations and Warranties.
(i) The covenants and agreements set forth in this Agreement
and in
certificates and Exhibits delivered pursuant hereto shall survive the Closing.
(ii) The following representations and warranties shall
survive the Closing:
(a) The last sentence of Paragraph "C" of this
Article "10" of this Agreement;
(b) Paragraph "F" of this Article "10" of this
Agreement;
(c) Paragraph "H" of this Article "10" of this
Agreement; and
(d) any claims for fraud and intentional
misrepresentations with
respect to any representations and warranties made in or in connection with this
Agreement and in certificates and Exhibits delivered pursuant hereto.
(iii) Except as otherwise provided in Subparagraph "(ii)" of
this Paragraph "L" of this Article "10" of this Agreement, the representations
and warranties made in or in
13
connection with this Agreement and in certificates and Exhibits delivered
pursuant hereto shall not survive the Closing,
11. Representations, Warranties and Covenants of Scantek.
Scantek represents, warrants and covenants to HumaScan, as follows:
A. Corporate Status.
(i) Scantek is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with all requisite
power and authority to carry on its business as presently conducted in all
jurisdictions where presently conducted.
(ii) A copy of a good standing certificate for Scantek issued
by the Secretary of State of the State of Delaware is annexed hereto and made a
part hereof as Exhibit "H" and is complete and correct as of the date of this
Agreement.
B. Corporate Authority and Due Authorization. Scantek has the
full authority, right, power and legal capacity to enter into this Agreement and
to consummate the transactions which are provided for herein. The execution of
this Agreement by Scantek, its delivery to HumaScan, and the consummation by
Scantek of the transactions which are contemplated herein have been duly
approved and authorized by Scantek's Board of Directors, which shall be
evidenced by a certified copy of the resolution of Scantek's Board of Directors
in the form which is annexed hereto and made a part hereof as Exhibit "I" which
shall be delivered at the Closing), and no further authorization shall be
necessary on the part of Scantek for the performance and consummation by Scantek
of the transactions which are contemplated by this Agreement.
14
C. No Approvals. No approval of any governmental authority is
required by Scantek in connection with the transactions which are provided for
in this Agreement.
D. Broker. Scantek has not had any dealing with respect to this
transaction with any business broker, firm or salesman, or any person or
corporation, investment banker or financial advisor who is or shall be entitled
to any broker's or finder's fee or any other commission or similar fee with
respect to the transactions provided for in this Agreement.
E. Complete Disclosure. No representation or warranty of Scantek
which is contained in this Agreement, or in a writing furnished or to be
furnished pursuant to this Agreement contains or shall contain any untrue
statement of a material fact, omits or shall omit to state any material fact
which is required to make the statements which are contained herein or therein,
in light of the circumstances under which they were made, not misleading.
F. No Defense. It shall not be a defense to a suit for damages by
HumaScan for any misrepresentation or breach of covenant or warranty that
HumaScan knew or had reason to know that any covenant, representation or
warranty in this Agreement or documents furnished or to be furnished to HumaScan
pursuant to this Agreement contained untrue statements.
12. Conduct of HumaScan's Business Prior to Closing Date.
Between the date of this Agreement and the Closing Date, HumaScan shall
not conduct any business in any manner related to Scantek's Business (as defined
in Paragraph "A" of Article "16" of this Agreement) and shall maintain all of
HumaScan's properties in their present condition (reasonable wear and tear
excepted) and maintain all existing insurance policies with respect to the
Assets. Without the prior written consent of Scantek, HumaScan shall not:
15
(i) make any change in the Certificate of Incorporation or
By-Laws of HumaScan;
(ii) incur any obligation or liability (absolute or
contingent), including, but not limited to, any debt or guarantee of any such
debt or issue or sell any debt securities or guarantee any debt securities of
others;
(iii) mortgage, pledge or subject to lien, charge or any other
encumbrance, any of the Assets;
(iv) sell, lease or otherwise dispose of, or agree to sell,
lease or otherwise dispose of, any of the Assets; or
(v) take any action or omit to do any act which would cause
the representations or warranties of HumaScan contained herein to be untrue or
incorrect.
13. Closing.
The Closing of this transaction (the "Closing") shall take place at the
offices of Xxxxx & Fraade, P.C. 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 5:00
P.M. on March 16 1999, or on such other date as is mutually agreed to in writing
by the parties (the "Closing Date"); provided, however, that if the Closing does
not take place by March 31, 1999, either party shall have the right to terminate
this Agreement upon notice to the other party pursuant to Paragraph "C" of
Article "20" of this Agreement.
16
14. Conditions of Closing.
A. Conditions Precedent to HumaScan's Obligation to Close. The
obligation of HumaScan to close the transactions provided for in this Agreement
shall be subject to the following conditions:
(i) Representations and Warranties of Scantek to be True. The
representations and warranties of Scantek herein contained shall be true
on the Closing Date with the same effect as though made at such time, except to
the extent waived in writing or affected by the transactions contemplated
herein; and Scantek shall have delivered to HumaScan a certificate of Scantek in
the form annexed hereto and made a part hereof as Exhibit "J", signed by the
President and Secretary of Scantek and dated the Closing Date.
(ii) Performance of Obligations of Scantek. Scantek shall have
performed all obligations and complied with all covenants
required by this Agreement to be performed or complied with by it prior to the
Closing Date; and Scantek shall have delivered to HumaScan a certificate of
Scantek in the form annexed hereto and made a part hereof as Exhibit "K", signed
by the President and Secretary of Scantek and dated the Closing Date.
(iii) No Governmental Proceedings. No action or proceeding
shall have been instituted before a court or other governmental body by any
governmental agency or public authority to restrain or prohibit the transactions
contemplated by this Agreement.
B. Conditions Precedent to Scantek's Obligations to Close. The
obligation of Scantek to close the transactions provided for in this Agreement
shall be subject to the following conditions:
17
(i) Representations and Warranties of HumaScan to be True. The
representations and warranties of HumaScan herein contained shall be true on the
Closing Date with the same effect as though made at such time, except to the
extent waived in writing or affected by the transactions contemplated herein;
and HumaScan shall have delivered to Scantek a certificate of HumaScan in the
form annexed hereto and made a part hereof as Exhibit "L", signed by the
President and Secretary of HumaScan and dated the Closing Date.
(ii) Performance of Obligations of HumaScan. HumaScan shall
have performed all obligations and complied with all covenants required by this
Agreement to be performed or complied with by it prior to the Closing Date,
including, but not limited to, obtaining the necessary consent of third parties;
and HumaScan shall have delivered to Scantek a certificate of HumaScan in the
form annexed hereto and made a part hereof as Exhibit "M", signed by the
President and Secretary of HumaScan and dated the Closing Date;
(iii) Statutory Requirements. Any statutory requirement and
any authorizations, consents and approvals of all federal, state and local
governmental agencies and authorities required to be obtained for the valid
consummation by HumaScan of the transactions contemplated by this Agreement
shall have been fulfilled;
(iv) No Governmental Proceedings. No action or proceeding
shall have been instituted before a court or other governmental body by any
governmental agency or public authority to restrain or prohibit the transactions
contemplated by this Agreement;
18
(v) Consents Under Agreements. HumaScan shall have obtained
the consent or approval of each person whose consent or approval shall be
required in connection with the transactions contemplated hereby;
(vi) Termination of HumaScan's Rights pursuant to the License
Agreement. HumaScan shall execute those documents requested by Scantek and its
counsel to assign to Scantek, and to terminate, HumaScan's interest in any right
or title which HumaScan had pursuant to the License Agreement. Without limiting
the generality of the foregoing, the foregoing documents will include, but will
not be limited to, the removal of HumaScan, with respect to Scantek's Business,
as a medical device manufacturer pursuant to the 510 K exemption or any other
status with the Food and Drug Administration with respect to Scantek's Business.
(vii) No Adverse Change. There shall not have occurred any
adverse change since the date of this Agreement with respect to the ownership or
condition of the Assets;
15. Documents, Checks, etc. to be Delivered at Closing.
A. At the Closing, Scantek shall deliver the following:
(i) the payment, pursuant to Article "5" of this Agreement, of
Two Hundred Thirty Five Thousand ($235,000.00) Dollars by check payable to
HumaScan;
(ii) a general release to HumaScan from Scantek in the form
annexed hereto and made a part hereof as Exhibit "B-1";
(iii) the Termination Agreement in the form annexed hereto and
made a part hereof as Exhibit "A";
19
(iv) Signed Resolution of Scantek's Board of Directors in the
form annexed hereto and made a part hereof as Exhibit "I".
(v) a certificate of Scantek in the form annexed hereto and
made a part hereof as Exhibit "J" signed by the President and Secretary of
Scantek and dated the Closing Date; and
(vi) a certificate of Scantek in the form annexed hereto and
made a part hereof as Exhibit "K" signed by the President and Secretary of
Scantek and dated the Closing Date. (vii) a general release to HumaScan from
Zigmed Corp. in the form annexed hereto and made a part hereof as Exhibit "N";
B. At the Closing, HumaScan shall deliver the following to
Scantek:
(i) the documents required pursuant to Article "9" of this
Agreement including, but not limited to, the Assignment;
(ii) the Scantek Shares
(iii) the Zigmed Shares (which Scantek shall deliver to
Zigmed); (iv) a general release to Scantek from HumaScan in the form annexed
hereto and made a part hereof as Exhibit "B-2";
(v) any consents or approvals which are required in connection
with the transactions contemplated hereby.
(vi) Signed Resolution of HumaScan's Board of Directors in the
form annexed hereto and made a part hereof as Exhibit "G".
(vii) a general release to Zigmed Corp from HumaScan in the
form annexed hereto and made a part hereof as Exhibit "O"
20
(viii) those documents requested by Scantek and its counsel to
assign to Scantek, and to terminate, HumaScan's interest in any right or title
which HumaScan had pursuant to the License Agreement. Without limiting the
generality of the foregoing, the foregoing documents will include, but will not
be limited to, the removal of HumaScan as, with respect to Scantek's Business, a
medical device manufacturer pursuant to the 510 K exemption or any other status
with the Food and Drug Administration with respect to Scantek's Business.
(ix) the Termination Agreement in the form annexed hereto and
made a part hereof as Exhibit "A";
(ix) a certificate of HumaScan in the form annexed hereto and
made a part hereof as Exhibit "L" signed by the President and Secretary of
HumaScan and dated the Closing Date; (x) a certificate of HumaScan in the form
annexed hereto and made a part hereof as Exhibit "M" signed by the President and
Secretary of HumaScan and dated the Closing Date; and
(xi) the Confidentiality Agreements (as defined in Paragraph
"C" of Article "17" of this Agreement)
(xii) an assignment of the rights as set forth in Paragraph
"C" of Article "17" of this Agreement to be evidenced by the assignment in the
form annexed hereto and made a part hereof as Exhibit "P".
16. Restrictive Covenants.
A. HumaScan agrees that it shall not from the date hereof and for
a period of two (2) years after the date of the Closing, without Scantek's prior
written consent, directly or indirectly
21
own, or otherwise become interested in, manage, operate, join, control, or
participate in, or be connected as a shareholder, partner or otherwise with any
business similar to Scantek's current business or any business which Scantek is
currently planning to be engaged in (the "Scantek's Business"), a description of
which is set forth in Exhibit "Q", which is annexed hereto and made a part
hereof, or in any manner directly or indirectly compete with Scantek's Business.
This shall not be construed to prevent HumaScan from: (i) making and supervising
passive investments in other and different businesses which are not in
competition with Scantek; or (ii) owning less than one (1%) percent of the
issued and outstanding shares of any publicly-held corporation regardless of
whether such companies are in competition with Scantek.
B. HumaScan agrees that for a period of five (5) years after the
date of the Closing, it will not (i) induce or attempt to induce any customer of
Scantek to reduce such customer's business with Scantek; (ii) solicit or attempt
to induce any of Scantek's employees or affiliates to leave the employment of
Scantek; or (iii) induce or attempt to induce any manufacturer, supplier,
wholesaler or other entity which does business with Scantek to reduce such
business with Scantek.
C. The restrictions which are contained in this Article "16" of
this Agreement shall apply worldwide. HumaScan acknowledges and agrees that
Scantek has engaged in, is in the process of negotiating agreements to engage
in, and intends to engage in, Scantek's Business throughout the World.
D. The parties hereto agree that the duration, scope and
geographic area for which the Restrictive Covenants set forth in this Article
"16" of this Agreement are to be effective have been specifically negotiated by
the parties and specifically agree that such duration, scope and geographical
area are reasonable with respect to Scantek's Business. If any court of
competent
22
jurisdiction determines that any provision of this Article "16" of this
Agreement is invalid or unenforceable by reason of such provision extending the
covenants and agreements contained herein for too great a period of time or over
too great a geographical area, or by reason of its being too extensive in any
other respect, such agreement or covenant shall be interpreted to extend only
over the maximum period of time and geographical area, and to the maximum extent
in all other respects, as to which it is valid and enforceable, all as
determined by such court in such action. Any determination that any provision of
this Article "16" of this Agreement is invalid or unenforceable, in whole or in
part, shall have no effect upon the validity or enforceability of any remaining
provision of this Article "16" of this Agreement.
17. Confidential Information.
A. As used in this Agreement and with respect to Scantek's
Business, "Confidential Information" means information: (i) which is known by
HumaScan as a consequence of its relationship with Scantek, including, but not
limited to, through research, development, manufacture and sale of the
BreastAlert(TM) (ii) which is known by HumaScan through any agreements with
Scantek or third parties, including, but not limited to, Zigmed, or (iii) with
respect to either HumaScan's business or Scantek's Business or any of their
products, processes, and other services relating thereto relating to the past or
present business of either HumaScan or Scantek or the future business of Scantek
or any plans therefore. Confidential Information includes, but is not limited
to, all documentation, hardware and software relating thereto, and information
and data in written, graphic and/or machine readable form, products, processes
and services, whether or not patentable, trademarkable or copyrightable or
otherwise protectable, including, but not limited to, information
23
with respect to discoveries; know-how; ideas; computer programs, source codes
and object codes; designs; algorithms; processes and structures; product
information; marketing information; price lists; cost information; product
contents and formulae; manufacturing and production techniques and methods;
research and development information; lists of clients and vendors and other
information relating thereto; financial data and information; business plans and
processes; documentation with respect to any of the foregoing; and any other
information of Scantek which Scantek has informed HumaScan or HumaScan knew, by
virtue of its position. Confidential Information also includes similar
information obtained by HumaScan from its vendors, licensors, licensees,
customers and/or clients. Confidential Information may or may not be labeled as
confidential.
B. HumaScan will not, directly or indirectly, use any
Confidential Information or disseminate or disclose any Confidential Information
to any person, firm, corporation, association or other entity. HumaScan shall
take all reasonable measures to protect Confidential Information from any
accidental, unauthorized or premature use, disclosure or destruction. The
foregoing restrictions of this Article "16" of this Agreement shall not apply to
any information which:
(i) was generally available to the public prior to such
disclosure;
(ii) becomes publicly available through no act or omission of
HumaScan;
or
(iii) is disclosed as required by the order of a Court having
jurisdiction over HumaScan; provided, however, that if HumaScan fails to give
Scantek reasonably prompt notice of any such court order HumaScan shall be
deemed to have breached its obligation hereunder and shall be liable to Scantek
for any all damages to Scantek as a result of any such disclosure pursuant to a
court order.
24
C. At the Closing, HumaScan shall assign to Scantek, to the
extent assignable, the benefit of any and all agreements with its employees,
agents and other third parties which contain confidentiality agreements,
restrictive covenants or similar provisions in favor of HumaScan (the
"Confidentiality Agreements") as evidenced by a form of assignment, annexed
hereto and made a part hereof as Exhibit "P"; provided, however, that any such
assignment shall provide that HumaScan has retained any and all rights against
any such employee, agent or third party for violation of any of HumaScan's
rights pursuant to any of such agreements.
18. Specific Performance/Equitable Relief.
A. HumaScan acknowledges that the Assets are unique and for
that reason, among others, Scantek will be irreparably damaged in the absence of
the consummation of this Agreement. Therefore, in the event of any breach by
HumaScan of this Agreement, Scantek shall have the right, at its election, to
obtain an order for specific performance of this Agreement, without the need to:
(i) post a bond or other security, (ii) to prove any actual damage or (iii) to
prove that money damages would not provide an adequate remedy.
B. A breach by HumaScan of any provision of Articles "16" and
"17" of this Agreement cannot be reasonably or adequately compensated in damages
in an action at law. Furthermore, a breach by HumaScan of any of the provisions
contained in Articles "16" and "17" of this Agreement will cause Scantek
irreparable injury and harm. HumaScan expressly agrees that Scantek shall be
entitled to preliminary and permanent injunctive or other equitable relief
without bond or other security, to prevent the breach or anticipated breach by
HumaScan of the provisions contained in Articles "16" and "17" of this
Agreement. Resort to such equitable relief, however, shall
25
not be construed to be a waiver of any other rights or remedies which Scantek
may have for damages or otherwise.
19. Construction. Each of the parties hereto hereby further
acknowledges and agrees that each has been advised by counsel during the course
of negotiations and had significant input in the development of this Agreement
and this Agreement shall not, therefore, be construed more strictly against any
party responsible for its drafting regardless of any presumption or rule
requiring construction against the party whose attorney drafted this Agreement.
20. Miscellaneous.
A. Headings. Headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
B. Enforceability. If any provision which is contained in this
Agreement should, for any reason, be held to be invalid or unenforceable in any
respect under the laws of any state or of the United States, such invalidity or
unenforceability shall not affect any other provision of this Agreement.
Instead, this Agreement shall be construed as if such invalid or unenforceable
provisions had not been contained herein.
C. Notices. Any notice or other communication required or
permitted hereunder must be in writing and sent by either (i) registered or
certified mail, postage prepaid, return receipt requested, (ii) overnight
delivery with confirmation of delivery or (iii) facsimile transmission with an
original mailed by first class mail, postage prepaid, in each case addressed as
follows:
26
If to Scantek: Scantek Medical, Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xx. Xxxxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
with a copy to: Xxxxx & Fraade, P.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to HumaScan: HumaScan Inc.
c/o Xxxxxxx Xxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxx X.X. Xxxxxxxx, President
Facsimile No.: (___) ___-____
with a copy to: Xxxxxxxx Mollen & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing by registered or certified mail is
impossible due to an absence of postal service, and if the other methods of
sending notice set forth in this Paragraph "C" of this Article "20" of this
Agreement are not otherwise available, notice shall be in writing and personally
delivered to the aforesaid address. Each notice or communication shall be deemed
to have been given as of the date so mailed or delivered, as the case may be;
provided, however that any notice sent by facsimile shall be deemed to have been
given as of the date sent by facsimile if a copy of such notice is also mailed
by first class mail on the date sent by facsimile; if the date of mailing
differs from the date of sending
27
by facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice was given.
D. Governing Law; Disputes. This Agreement shall in all respects
be construed, governed, applied and enforced with the laws of the State of New
Jersey without giving effect to the principles of conflicts of laws and be
deemed to be an agreement entered into in the State of New Jersey and made
pursuant to the laws of the State of New Jersey. Except as otherwise provided in
Article "18" of this Agreement, the parties agree that they shall be deemed to
have agreed to binding arbitration in Newark, New Jersey, with respect to the
entire subject matter of any and all disputes relating to or arising under this
Agreement including, but not limited to, the specific matters or disputes as to
which arbitration has been expressly provided for by other provisions of this
Agreement. Any such arbitration shall be by a panel of three arbitrators and
pursuant to the commercial rules then existing of the American Arbitration
Association in the State of New Jersey, County of Essex. In all arbitrations,
judgment upon the arbitration award may be entered in any court having
jurisdiction. The parties specifically designate the Courts in the City of
Newark, State of New Jersey as properly having jurisdiction for any proceeding
to confirm and enter judgment upon any such arbitration award. The parties
hereby consent to and submit to personal jurisdiction over each of them by the
Courts of the State of New Jersey in any action or proceeding, waive personal
service of any and all process and specifically consent that in any such action
or proceeding, any service of process may be effectuated upon any of them by
certified mail, return receipt requested, in accordance with Paragraph "C" of
this Article "20" of this Agreement. The parties agree, further, that the
prevailing party in any such arbitration as determined by the arbitrators shall
be entitled to such costs and attorney's fees, if any, in connection with such
arbitration as may be awarded by the arbitrators.
28
In connection with the arbitrators' determination for the purpose of which
party, if any, is the prevailing party, they shall take into account all of the
factors and circumstances including, without limitation, the relief sought, and
by whom, and the relief, if any, awarded, and to whom. In addition, and
notwithstanding the foregoing sentence, a party shall not be deemed to be the
prevailing party in a claim seeking monetary damages, unless the amount of the
arbitration award exceeds the amount offered in a writing by the other party by
fifteen percent (15%) or more. For example, if the party initiating arbitration
("A") seeks an award of $100,000 plus costs and expenses, the other party ("B")
has offered A $50,000 prior to the commencement of the arbitration proceeding,
and the arbitration panel awards any amount less than $57,500 to A, the panel
should determine that B has "prevailed".
E. Entire Agreement. The parties have not made any
representations, warranties, or covenants with respect to the subject matter
hereof which is not set forth herein, and this Agreement, together with any
instruments or other agreements executed simultaneously herewith, constitutes
the entire Agreement between them with respect to the subject matter hereof. All
understandings and agreements heretofore had between the parties with respect to
the subject matter hereof are merged in this Agreement and any such instrument,
which alone fully and completely expresses their agreement. This Agreement may
not be changed, modified, extended, terminated or discharged orally, but only by
an agreement in writing, which is signed by all of the parties to this
Agreement.
F. Further Assurances. The Parties agree to execute any and all
such other and further instruments and documents, and to take any and all such
further actions, which are reasonably required to effectuate this Agreement and
the intents and purposes hereof.
29
G. Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, personal representatives, successors and assigns.
H. Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
I. Expenses. Each party hereto shall pay its own expenses
incident to the negotiation and preparation of this Agreement and all other
documents necessary or appropriate to consummate the transactions provided for
herein, and shall bear its own costs and expenses incurred in closing and
carrying out the transactions provided for by this Agreement.
J. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
30
K. Exhibits
All Exhibits annexed or attached to this Agreement are
incorporated into this Agreement by reference thereto and constitute an integral
part of this Agreement.
IN WITNESS WHEREOF, the parties hereof have signed these
presents, as of the day, month and year first above written.
Scantek Medical, Inc.
By:____________________________
Xx. Xxxxxxxx X. Xxxx, President
HumaScan Inc.
By:_______________________________
Xxxxx X.X. Xxxxxxxx,
President
31
EXHIBIT A
TERMINATION AGREEMENT
AGREEMENT dated as of the 15th day of March, 1999 by and between HumaScan,
Inc. a Delaware corporation, with an address at c/o Xxxxxxx Xxxxxxxxx, 00
Xxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 ( "HumaScan") and Scantek Medical,
Inc. a Delaware corporation, with an address at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 ("Scantek").
W I T N E S SE T H :
WHEREAS, Scantek has licensed to HumaScan the rights to manufacture,
market and sell the BreastAlertJ Differential Temperature Sensor ("BreastAlert")
pursuant to the Second Amended License Agreement dated as of October 20, 1995 as
amended on February 26, 1996, March 17, 1996, April 29, 1996 and May 31, 1996
and as further amended by the Settlement Agreement dated May 15, 1998
(collectively the "License Agreement");
WHEREAS, HumaScan has failed to pay license fees, royalties and other sums
due to Scantek for the period through the date of this Agreement, in the amount
of Seven Hundred Fifty Thousand ($750,000) Dollars;
WHEREAS, as a result of HumaScan=s defaults pursuant to the License
Agreement including, but not limited to, HumaScan=s default in paying royalties,
Scantek would be able to terminate the License Agreement; and
WHEREAS, HumaScan and Scantek have agreed to avoid legal proceedings with
respect to the License Agreement and desire to terminate the License Agreement;
1
WHEREAS, HumaScan has agreed to transfer to Scantek certain of its assets,
including, but not limited to, those which were utilized in connection with the
License Agreement in order to satisfy its indebtedness to Scantek;
WHEREAS, pursuant to the cancellation of the License Agreement HumaScan
shall have no active business and, as a result, HumaScan desires to transfer
certain of its assets which exceed its indebtedness to Scantek, Scantek is
willing and in order to make a settlement with HumaScan;
NOW, THEREFORE, in consideration of the mutual covenants of the
parties which are hereinafter set forth and for other good and valuable
consideration, receipt of which is hereby acknowledged,
IT IS AGREED:
1. Recitals. The parties hereby adopt as part of this Agreement each of the
recitals which is contained in the WHEREAS clauses, and agree that such recitals
shall be binding upon the parties hereto by way of contract and not merely by
way of recital or inducement; and such clauses are hereby confirmed and ratified
as being true and accurate by each party as to himself, herself or itself.
2. Termination Effective immediately, the License Agreement is hereby terminated
and shall be deemed null and void and of no further force and effect.
3. Miscellaneous.
A. Entire Agreement. The parties have not made any representations,
warranties, or covenants with respect to the subject matter hereof which is not
set forth herein, and this Agreement, together with any instruments or other
agreements executed simultaneously herewith, constitutes the entire Agreement
between them with respect to the subject matter hereof. All understandings and
2
agreements heretofore had between the parties with respect to the subject matter
hereof are merged in this Agreement and any such instrument, which alone fully
and completely expresses their agreement. This Agreement may not be changed,
modified, extended, terminated or discharged orally, but only by an agreement in
writing, which is signed by all of the parties to this Agreement.
B. Further Assurances. The Parties agree to execute any and all such other
and further instruments and documents, and to take any and all such further
actions, which are reasonably required to effectuate this Agreement and the
intents and purposes hereof.
C. Binding Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their heirs, executors, administrators,
personal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Termination
Agreement as of the day, month and year first written above,
HumaScan, Inc.
By:________________________________
Xxxxx Xxxxxxxx, President
Attest:
-----------------------
Secretary
(Corporate Seal)
Scantek Medical, Inc
By:_______________________________
Xxx Xxxxxxx, Vice President
Attest:
-----------------------
Secretary
(Corporate Seal)
3
EXHIBIT B
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT
Scantek Medical, Inc., 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000
A corporation organized under the laws of the State of_________________________,
as RELEASOR,
in consideration of the sum of_________________________($ ), received from
HumaScan, Inc., 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
as RELEASEE,
receipt whereof is hereby acknowledged and discharges
HumaScan, Inc., 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
the RELEASEE, RELEASEE'S heirs, executors,
administrators, successors and assigns from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, which against the RELEASEE, the
RELEASOR, RELEASOR'S successors and assigns ever had, now have or hereafter can,
shall or may have, for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
RELEASE,
saving and excepting the Releasee's obligations pursuant to the
settlement Agreement by and between HumaScan, Inc. and Scantek Medical,
Inc. dated as of the 1st day of March, 1999.
The words "RELEASOR" and "RELEASEE" includes all releasors and all
releasees under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, the RELEASOR has caused this RELEASE to be executed
by its duly authorized officers and its corporate seal to be hereunto affixed
on_______________________, 1999.
IN PRESENCE OF:
----------------------------------
Scantek Medical, Inc.
By /S/
----------------------------------
Xxxxxxx X. Xxxx
STATE OF_____________________, COUNTY OF____________________ ss.:
On ____________________, 1999 before me ___________________________
personally came Xxxxxxx X. Xxxx, to me known, who, by me duly sworn, did depose
and say that deponent resides at____________________________, that deponent is
the President of Scantek Medical, Inc., the corporation described in, and which
executed the foregoing RELEASE, that deponent knows the seal of the corporation,
that the seal affixed to the RELEASE is the corporate seal, that it was affixed
by order of the board of______________________ of the corporation; and that
deponent signed deponent's name by like order.
-----------------------------------
If the party making payment is not the same as the party released, delete words
"as RELEASEE" and add names of parties released after the word "discharges."
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT
HumaScan, Inc., 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
A corporation organized under the laws of the State of Delaware,
as RELEASOR,
in consideration of the sum of one dollar and for other good and valuable
consideration ($ ), received from Scantek Medical, Inc., 000 Xxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxxxx 00000
as RELEASEE,
receipt whereof is hereby acknowledged and discharges
Scantek Medical, Inc., 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000
the RELEASEE, RELEASEE'S heirs, executors,
administrators, successors and assigns from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, which against the RELEASEE, the
RELEASOR, RELEASOR'S successors and assigns ever had, now have or hereafter can,
shall or may have, for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
RELEASE,
The words "RELEASOR" and "RELEASEE" includes all releasors and all
releasees under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, the RELEASOR has caused this RELEASE to be executed
by its duly authorized officers and its corporate seal to be hereunto affixed
on_______________________, 1999.
IN PRESENCE OF:
----------------------------------
HumaScan, Inc.
By /S/
----------------------------------
Xxxxx X.X. Xxxxxxxx
STATE OF_____________________, COUNTY OF____________________ ss.:
On ____________________, 1999 before me ____________________________
personally came Xxxxx X.X. Xxxxxxxx, to me known, who, by me duly sworn, did
depose and say that deponent resides at_______________________________, that
deponent is the President of HumaScan, Inc., the corporation described in, and
which executed the foregoing RELEASE, that deponent knows the seal of the
corporation, that the seal affixed to the RELEASE is the corporate seal, that it
was affixed by order of the board of______________________ of the corporation;
and that deponent signed deponent's name by like order.
-----------------------------------
If the party making payment is not the same as the party released, delete words
"as RELEASEE" and add names of parties released after the word "discharges."
EXHIBIT C
ITEM # DESCRIPTION QTY COMMENTS
------ ------------------------------------------------------------------- --- ----------
1.1.1d FTS Chiller 1 Include Id
1.1.2d Xxxxxxxxx Xxxx 0 Xxxxxxx Xx
1.1.3d Control system 1 Include Id
1.1.d Sensor Web Machine 1 Include Id
1.2d Manhasset 6MH Cutting Press 1 Include Id
1.3.1d Label-Aire Label Applicators 6 Include Id
1.3.1d MGS Pick & Place Unit 1 Include Id
1.3.2d Wrap-Ade Packaging Machine 1 Include Id
1.3.3d LSI Labelers 2 Include Id
1.3.4d Xxxxxx Conveyors Belts & Stands 2 Include Id
1.3.5d Control System and Wiring 1 Include Id
1.3.6d Machine Bases for Knuckle Press (Knuckle Press not available) 2 Include Id
1.3.7d Xxxxxxxxx Xxxx 0 Xxxxxxx Xx
1.3.d Assembly and Packaging Line 1 Include Id
1.a Precision Scientific Low Temperature Incubator - Model 815 3
1.d Zigmed Production Line (as is condition) 1
10.d Sullair E56-IOH, Air Cooled Base, 10HP Continuous Duty Rotary 1
Screw Air Compressor
11.a IVEK Precision Dispensing Xxxx 0
00.x Xxxxxx Xxxx Cabinet 36x35-3/4x22 2
11.d Zeks Model 35HSEA100 Refrigerated Air Dryer 1
12.c Xxxx Pallet Xxxx, 12 volt 1
12.a Heating Circulators with Digital Temperature Controller 23
12.g Respirator Storage Cabinet 1
13.b Solvent Base Cabinet 36" 1
13.g Right to Know Spill Center (Blue Board and Spill Cabinet) 1
14.a Electrothermal Melting Point Apparatus Model 1A9300
w/Printer Model PR2000 1
14.b Wallcase 48x30x12 5
14.c Upright Cylinder Cabinet, 46-341D, C&H Dist 000-000-0000 1
14.g Fire Rag Bucket 2
15.b Glass Doors for VFW-1118 Set-2 5
15.a Metro Mobile Oven HM2000 1
16.h Computer 1 Skid
19.g Craftsman tool box and tools 1
19.h Computer 1
2.1d FTS Chiller 1 Include Id
2.2d Vision Inspection System w/computer (not in use) 1 Include Id
2.3d Semi-automated assembly station 4 Include Id
2.4d Modified vial adjustment system 1 Include Id
2.a Buck Scientific IR Spectrophotometer-Model 500 1 Include Computer
2.b Hood Base Cabinet 36 in 1
20.h Monitor 1
21.h Computer 1
22.g Paper Shredder 1
22.h Monitor 1
26.h Monitor 1
27.g TV - Conf Room 1
27.h Computer 1
28.g VCR - Conf Room 1
29.g Postage Meter 1
3.1.d FTS Chiller (spare) 1 Include Id
ITEM # DESCRIPTION QTY COMMENTS
------ ------------------------------------------------------------------- --- ----------
[TO COME] Foam Assembly Station (not completed) 2 Include Id
Flammable Storage Cabinet (Red) 2 Warehouse
CTC Mechanical Web Tensioners (spare) 2 Include Id
Flammable Storage Cabinet (Yellow) 1 Lab
FIFE Mechanical Edge Guide System (spare) 1 Include Id
CSI Motion Controller, Servo, Gearbox (spare) 1 Include Id
LSI Model 1061 Applicator 1 Include Id
Frame work for 2nd sensor web machine 1 Include Id
Rubber Rollers (Abrubco) (spare) 1 Include Id
Large die (New design) (spare) (1 assembled, 1 unassembled) 2 Include Id
Rewind Station (not in use) 1 Include Id
Xxxxxx Xxxxx Autosystem XL GC w/Turbochrom Software 1
Acid Base Cabinet - 36 PE Lined 1
Computer 1 Skid
Heavy Duty Wire Shelving - Chrome 6
Blue - Lab Cart 2
Computer 1 Skid
Misc MGS nuts/bolts Box in Maintenance 1
Spill Pallets - Steel (White) 2 Warehouse
Spill Pallets - (Yellow) 2 Warehouse
Nation - 2 Drawer Lateral File Taper Edge Finish MC 1
Podium 1
Easel 1
National - Wood Cylinder Base Finish MC 1 Include Id
National - 42 Dia Table w/Waterfall Edge Finish MC 1
Chair - Arcadia - LB Knee Tilt - Wood Arm Open, Pneu lift 2
Rugs - Black 6
Impulse Sealer and Bags 1
Aluminum Sample Suitcases 3
Monitor 1 Skid
Cocktail Table 1 Office #5
Woman's Bust Model 1
Monitor 1 Skid
Ametek - Accuforce EZ250 Test Stand w/Accuforce IV Digital
Force and Torque Gauge 1
Computer 1 Skid
Small Postal Scale 1
Electric Stapler 1
Bookcase 1 Office #2
Storage Cabinet - Xxxx - Closed 8
Printer 1 Skid
Storage Cabinet - Open Shelved - Tan 6
Hole Punch 1
Computer 1 Computer Room
Xxxxxxx Toledo - Melting Point Instrument FP62 1
Sink Base Cabinet 48-35-3/4x22 1
Fax Machine 1
Worktables - Steel 2
Monitor 1 Computer Room
Worktables - Formica - Holes in Top 2
Miscellaneous Instrumentation (Humidity, temp chart recorders, etc) 1
ITEM # DESCRIPTION QTY COMMENTS
------ ------------------------------------------------------------------- --- ----------
68.g Miscellaneous Personal Protective Equipment 1
69.g Display Case - Large 1
7.a Xxxxxxx Toledo - Balance Professional Xxxxx XX0000 0
0.x Xxxxxxxx Tub Sink 24x8x16 1
7.c Hobart Battery Accu-charger Model 540A1-6 2
70.g Display Case - Small 1
71.g 5-drawer cabinet - putty 1
72.g Gas Cylinder Hand Truck 2
73.g Red Material Bins 6
74.g Blue Material Bins 6
75.g Black Conf Table and 4 chairs 1
76.g Miscellaneous Lab Supplies (in-drawers) 1
77.g Freezer 1
78.g Oven 1
8.a Xxxxxxx Toledo - Balance Analytical Premier AT460 Deltarange 1
9.a Labconco Filter Vapor Work Enclosure VWR#30141-123 1
9.b Left Xxxxxx Xxxx 0
0.x Xxxxxx Xxxxx Press 1
4.a Xxxxxx Xxxxx Differential Scanning Calorimeter DSC-6 1 Include Computer
13.a Neslab RTE-100 Recirculator 1 Include 4a
4.b Safe-T-Zone Shower/Eyewash station 1
5.b Labconco Flask Scrubber, Free Standing 1
12.b Cupboard/Drawer Base Cabinet 36x35-3/4x22 2
16.b Open F/H Storage Case 48x84x16 2
17.b Glazed Sliding Door, VFS-2118-01 Set-2 2 Include 16b
10.c Intermec Bar Code Printer Model 3600 1
4.d Intermec Bar Code Printer Model 3600 1
6.d 30"x60" Adjustable Height Table with Armox Comfort Edge, 53-187AX 12
8.d Basic Stool, Adjustable Height, 3W597, Grainger 13
40.e National - 2 Drawer Lateral File Taper Edge Finish MC 1 Office #9
21.g Overhead Projector w/screen 1 Main Conf Room
9.c Sterling digital readout Scale DW-750 w/Platform Scale E4848-5 1
57.f Table - Xxxxx 1 Ship Office
24.f File - 5 drawer lateral - putty 3 Maintenance
33.f Storage Cabinet - Black 1 Computer Room
51.h Printer 1 Office #10
34.h Printer 1 Skid
1.g HP Plotter 1 Prod Office
2.g 5-drawer blueprint cabinet and stand 1 Prod Office
16.g Flat bed hand trucks (xxxx) 1 Warehouse
30.g Copier Mitia 1 Prod Office
9.f Chair - High Back Swivel Tilt - Burgandy 3 Prod Office
7.f Desk - Single pedestal 30x66 1 Prod Office
6.5 Desk-L Workstation 30x66 w/24x48 return - Xxxx 2 Prod Office
10.f Panel - Wall Mounted Panel 36x60 xxxx 2 Prod Office
11.f Panel - Wall Mounted Panel 36x60 xxxx 2 Prod Office
1.f File - 2 drawer lateral 36" wide - Pt/Xx Xxxx 2 Prod Office
4.c Crown RD Model 30RDTT w/sideshifter A-19100 Doublereach
Forklift - 1985 1
8.c Hobart 'R' Series Battery Charger Xx. 000X0-00X 0 Xxxxxxx 0x
00.x Xxxxxxxx-Xxxxxxxx Black textured 34x180x30 1
ITEM # DESCRIPTION QTY COMMENTS
------ ------------------------------------------------------------------- --- ----------
15.f Workunit-Laminated upper shelf unit 14x180x10 1
17.f Desk-Xxxx - Dble Ped 30x60 Steel 1
15.c Manual Crown Pallet Xxxx 1
16.a Precision Economy Oven No. 31576 1-800-621-8820 1
AL001 ALUMINUM WEB LARGE A 258 Rolls
AL002 ALUMINUM WEB LARGE B 247 Rolls
AL003 ALUMINUM WEB LARGE C 229 Rolls
CHOO1 ORTHO-CLORO-NITRO 99% 170 Kg
CHOO2 ORTHO-BROMO-NITRO 99% 50 Kg
CHOO3 COPIKEN BLUE CUL 3 Lbs
MT003 PIB LIDDING ROLLS 919 Rolls
CH005 D.C. & RED 17 2 lbs
LL004 LEFT LABEL ROLLS 82,000 Ea
LL005 RIGHT LABEL ROLLS 82,000 Ea
LL001 CASE LABEL ROLLS 40 Rolls
LLOO3 DFU PRINTED INSERTS 230,000 Ea
MT002 POUCH PRINTED ROLLS 430,077 Ea
MT005 POUCH UNPRINTED ROLLS 762,263 Ea
MT007 PRINTED FOLDING CARTONS 92,675 Ea
MT010 FOAM PAD W/ADHESIVE 461,600 Ea
MT011 DIE CUT RELEASE LINER 400,000 Ea
MT012 INTERMEDIATE BOX 3,300 Ea
MT013 INSULATED SHIPPING CASE 862 Ea
MT014 FREEZER GEL PACS - 18/Case 1,458 Cases
MT015 INSULATED SHIPPING CASE-2 BOX 269 Ea
EXHIBIT D
Regulatory Documentation:
510(k) - un-redacted version from FDA
510(k) - Design change file
Device master record and product specifications
Standard operating procedures
Quality manual
Change request file (CR)
Validation protocols
QA complaint files
Device listing files
Facility registration files
Forms
Manufacturing and quality Assurance:
Chemical batch laboratory notebooks
Production work orders/lot history records: PWO's
Operations files (vendor approval files, equipment files, validations)
Design notes from operations on transfer of technology from Scantek/Zigmed
Clinical Documentation:
Clinical affairs SOP's
Adverse events and reporting
Technical support records
Clinical monitoring forms
References, bibliographics and other published resources
References cited in protocols
Protocols and clinical study reports
EXHIBIT E
ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS, that HumaScan Inc., a Delaware corporation
having its principal office and place of business at c/o Xxxxxxx Xxxxxxxxx, 00
Xxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 ("HumaScan"), in consideration of the
satisfaction of the debt owed to Scantek Medical, Inc. (AScantek@) by HumaScan,
and for other good and valuable consideration, receipt of which is hereby
acknowledged, HumaScan has transferred, assigned, set over and conveyed, and by
these presents does transfer, assign, set over and convey unto Scantek, its
successors and assigns forever, all of the Assets (hereinafter referred to as
the "Assets") listed on Exhibits "A" and "B" attached hereto and made a part
hereof.
TO HAVE AND TO HOLD the Assets unto Scantek, its successors and assigns,
to its own use and behalf forever.
HumaScan, for itself and its successors and assigns further covenants and
agrees to do, execute and deliver, or cause to be done, executed and delivered,
all such further acts, transfers and assurances, for the better assuring,
conveying and confirming unto Scantek and its successors and assigns, all and
singular, the Assets hereby bargained, sold, assigned, transferred, set over and
conveyed, as Scantek and its successors and assigns shall request.
HumaScan hereby warrants and covenants, at HumaScan's cost and expense, to
defend Scantek's title to the Assets against all claims and demands of all
persons and entities whatsoever.
This Assignment and the representations, warranties, and covenants herein
contained shall inure to the benefit of Scantek and its successors and assigns
and shall be binding upon HumaScan and its successors, assigns and transferees.
IN WITNESS WHEREOF, the HumaScan has caused this Assignment to be executed
as of the 15th day of March, 1999.
HumaScan, Inc.
By: ______________________
Xxxxx Xxxxxxxx, President
STATE OF ____________ )
)ss.:
COUNTY _____________ )
On the 15th day of March, 1999 before me personally came Xxxxx Xxxxxxxx to
me known, who, being by me duly sworn, did depose and say that he resides at
___________________________ that he is the President of HumaScan, Inc., the
corporation described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation, and that he signed his name thereto by like order.
-----------------------
Notary Public
EXHIBIT F
PAGE 0
XXXXX XX XXXXXXXX
XXXXXX XX XXX XXXXXXXXX XX XXXXX
--------------------------------
I, XXXXXX X. XXXXX, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY "HUMASCAN INC." IS DULY INCORPORATED UNDER THE LAWS OF THE STATE OF
DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE SO FAR AS
THE RECORDS OF THIS OFFICE SHOW, AS OF THE TENTH DAY OF FEBRUARY, A.D. 1999.
AND I DO HEREBY FURTHER CERTIFY THAT THE SAID "HUMASCAN INC." WAS
INCORPORATED ON THE TWENTY-SEVENTH DAY OF DECEMBER, A.D. 1994.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO
DATE.
/s/ XXXXXX X. XXXXX
-----------------------------
Xxxxxx X. Xxxxx, Secretary of State
AUTHENTICATION: 9567789
DATE: 02-10-99
EXHIBIT G
PAGE 2
The undersigned officer of Humanscan Inc., a Delaware corporation
("Corporation"), hereby certifies that the following resolutions were duly
adopted by the Board of Directors of the Corporation by Unanimous Consent on
March 1, 1999, have not been amended, modified or repealed and remain in full
force and effect:
RESOLVED, that the Corporation be, and it hereby is, authorized to
enter into a Settlement Agreement with Scantek Medical, Inc. ("Scantek")
and Zigmed Corp. ("Zigmed") providing for the transfer to Scantek of
certain of the Corporation's tangible assets related to the manufacture,
marketing and sale of the "Breast Alert" Differential Temperature Sensor
and the issuance of 150,000 shares of the Corporation's common stock to
Scantek in consideration for the payment of amounts due to Scantek under
the License Agreement between the Corporation and Scantek, the termination
of the License Agreement and the payment by Scantek, of $340,000 to the
Corporation and the payment to Zigmed of $105,000 (to be paid by Scantek
from such $340,000) and the issuance of 200,000 shares of the Corporation's
common stock to Zigmed in payment of amounts due to Zigmed for machinery
and equipment supplied to the Corporation by Zigmed, such Settlement
Agreement to be substantially in the form of the draft thereof dated
February 26, 1999, with such changes to the text and form thereof as the
officers of the Corporation executing such Settlement Agreement shall deem,
in their sole judgment, to be necessary and desirable; and it is further
RESOLVED, that the officers of the Corporation, and each of them
without the others, be, and each of them hereby is, authorized and
empowered to execute and deliver, in the name and on behalf of the
Corporation, the Settlement Agreement and all instruments, certificates and
other documents to be provided by the Corporation pursuant to or in
connection with the consummation of the transactions contemplated by the
Settlement Agreement; and it is further
RESOLVED, that all acts heretofore taken by the officers of the
Corporation in furtherance of the consummation of the transactions
contemplated by the Settlement Agreement be, and they hereby are, ratified
and confirmed in all respects.
IN WITNESS WHEREOF, the undersigned has executed this Certificate in
his capacity as an officer of the Corporation holding the office specified
below his signature this 2nd day of March, 19999.
-------------------------------
Xxxxxxxxxxx X.X. Xxxxxxxx
President
EXHIBIT H
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, XXXXXX X. XXXXX, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY "SCANTEK MEDICAL, INC." IS DULY INCORPORATED UNDER THE LAWS OF THE STATE
OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE SO FAR
AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE SIXTEENTH DAY OF FEBRUARY, A.D.
1999.
AND I DO HEREBY FURTHER CERTIFY THAT THE SAID "SCANTEK MEDICAL, INC." WAS
INCORPORATED ON THE TENTH DAY OF JUNE, A.D. 1998.
AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO
DATE.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO
DATE.
/s/ XXXXXX X. XXXXX
-----------------------------
Xxxxxx X. Xxxxx, Secretary of State
AUTHENTICATION: 9576798
DATE: 02-16-99
EXHIBIT I
UNANIMOUS WRITTEN CONSENT OF DIRECTORS
IN LIEU OF A MEETING OF THE BOARD OF DIRECTORS
OF
SCANTEK MEDICAL, INC.
The undersigned, being all of the directors of Scantek Medical, Inc. (the
ACompany@), a Delaware corporation, do hereby consent to the adoption of the
following resolutions by written consent, without a meeting of the Board of
Directors of the Company.
WHEREAS, the Chairman has presented to each director the proposed
settlement agreement dated as of the 11th day of March, 1999, a copy of which is
annexed hereto as Exhibit AA@ with HumaScan, Inc., together with a letter dated
March 11, 1999 from Company counsel, Xxxxxxxxx X. Xxxxx, a copy of which is
annexed hereto as Exhibit AB@.
NOW, THEREFORE, IT IS
RESOLVED, that the Board of Directors approves the Company entering into
the Agreement, substantially in the form annexed hereto as Exhibit AA@; and it
is further
RESOLVED, that the officers of the Company execute such documents as may
be required and take, or cause to be taken, any and all such further actions as
may be necessary and required to implement the forgoing resolution.
IN WITNESS WHEREOF, the undersigned have executed this consent as of the
___ day of March, 1999.
------------------------
Xxxxxxx Xxxxxx
------------------------
Xxxxxxxx X. Xxxxxxx
------------------------
Xxxxxx Xxxx
------------------------
Xxxx Xxxxxx
------------------------
Xxxxxxxx Xxxx, Ph.D.
------------------------
Xxxxxxx Xxxxxx, Ph.D
EXHIBIT J
CERTIFICATE OF REPRESENTATIONS
AND WARRANTIES OF SCANTEK MEDICAL, INC
Pursuant to Article "11" of the Agreement dated as of the 11th day of
March, 1999, by and among HumaScan, Inc. ("HumaScan") and Scantek Medical, Inc.
("Scantek") hereby represents, warrants and covenants to HumaScan, that, as of
the date hereof, all of the representations, warranties and covenants which are
contained in the Agreement are true and accurate, including, but not limited to,
those set forth below. Each of the capitalized terms which is used in this
Certificate shall have the same meaning as is set forth in the Agreement.
Scantek, represents, warrants and covenants to HumaScan, as follows:
1. Corporate Status.
A. Scantek is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with all requisite power
and authority to carry on its business as presently conducted in all
jurisdictions where presently conducted.
B. A copy of a good standing certificate for Scantek issued by the
Secretary of State of the State of Delaware is annexed to the Agreement and made
a part thereof as Exhibit AH@ and is complete and correct as of the date of the
Agreement.
2. Corporate Authority and Due Authorization. Scantek has the full
authority, right, power and legal capacity to enter into the Agreement and to
consummate the transactions which are provided for in the Agreement. The
execution of the Agreement by Scantek, its delivery to HumaScan, and the
consummation by Scantek of the transactions which are contemplated therein
1
have been duly approved and authorized by Scantek's Board of Directors, which
shall be evidenced by a certified copy of the resolution of Scantek's Board of
Directors in the form which is annexed to the Agreement and made a part thereof
as Exhibit AI@ which shall be delivered at the Closing), and no further
authorization shall be necessary on the part of Scantek for the performance and
consummation by Scantek of the transactions which are contemplated by the
Agreement.
3. No Approvals. No approval of any governmental authority is required by
Scantek in connection with the transactions which are provided for in the
Agreement.
4. Broker. Scantek has not had any dealing with respect to this
transaction with any business broker, firm or salesman, or any person or
corporation, investment banker or financial advisor who is or shall be entitled
to any broker's or finder's fee or any other commission or similar fee with
respect to the transactions provided for in the Agreement.
5. Complete Disclosure. No representation or warranty of Scantek which is
contained in the Agreement, or in a writing furnished or to be furnished
pursuant to the Agreement contains or shall contain any untrue statement of a
material fact, omits or shall omit to state any material fact which is required
to make the statements which are contained herein or therein, in light of the
circumstances under which they were made, not misleading.
6. No Defense. It shall not be a defense to a suit for damages by HumaScan
for any misrepresentation or breach of covenant or warranty that HumaScan knew
or had reason to know
2
that any covenant, representation or warranty in the Agreement or documents
furnished or to be furnished to HumaScan pursuant to the Agreement contained
untrue statements.
Dated: New York, New York
March 15, 1999
Scantek Medical, Inc.
By:____________________________
Xx. Xxxxxxxx X. Xxxx, President
STATE OF NEW YORK )
)ss.:
COUNTY NEW YORK )
On the 15th day of March, 1999 before me personally came Zsigmond X. Xxxx
to me known, who, being by me duly sworn, did depose and say that he resides at
__________________________, that he is the President of Scantek Medical, Inc.,
the corporation described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name thereto by like
order.
------------------------------
Notary Public
3
EXHIBIT K
CERTIFICATE OF PERFORMANCE
OF OBLIGATIONS OF SCANTEK MEDICAL, INC
In accordance with Article A15@ of the proposed settlement agreement dated
as of the 11th day of March, 1999 by and between by and between HumaScan, Inc.
(AHumaScan@) and Scantek Medical, Inc., ("Scantek"), Scantek hereby represents,
warrants and covenants that Scantek has performed all obligations and complied
with all covenants required by the Agreement to be performed or complied with by
it prior to the Closing Date.
SCANTEK MEDICAL, INC.
Dated: New York, New York By: _____________________________
Xxxxx 00, 0000 Xxxxxxxx X. Xxxx, President
EXHIBIT L
CERTIFICATE OF REPRESENTATIONS
AND WARRANTIES OF HUMASCAN, INC.
Pursuant to Article "10" of the Settlement Agreement (the "Agreement")
dated as of the 11th day of March, 1999, by and among HumaScan, Inc.
("HumaScan") and Scantek Medical, Inc. ("Scantek") hereby represents, warrants
and covenants to HumaScan, that, as of the date hereof, all of the
representations, warranties and covenants which are contained in the Agreement
are true and accurate, including, but not limited to, those set forth below.
Each of the capitalized terms which is used in this Certificate shall have the
same meaning as is set forth in the Agreement.
HumaScan, represents, warrants and covenants to Scantek, as follows:
1. Corporate Status.
A. HumaScan is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with all requisite power
and authority to carry on its business as presently conducted in all
jurisdictions where presently conducted.
B. HumaScan does not have any equity interest, as a shareholder,
proprietor, partner, beneficiary, joint venturer or otherwise, in any
corporation, firm, partnership or joint venture.
C. A copy of a good standing certificate for HumaScan issued by the
Secretary of State of the State of Delaware is annexed to the Agreement and made
a part thereof as Exhibit AF@ and is complete and correct as of the date of the
Agreement.
2. Corporate Authority and Due Authorization. HumaScan has the full
authority, right, power and legal capacity to enter into the Agreement and to
consummate the transactions which are provided for therein. The execution of the
Agreement by HumaScan, its delivery to Scantek, and the consummation by HumaScan
of the transactions which are contemplated herein have
1
been duly approved and authorized by HumaScan's Board of Directors, which shall
be evidenced by a certified copy of the resolution of HumaScan's Board of
Directors in the form which is annexed to the Agreement and made a part thereof
as Exhibit AG@ which shall be delivered at the Closing), and no further
authorization is necessary on the part of HumaScan for the performance and
consummation by HumaScan of the transactions which are contemplated by the
Agreement.
3. Compliance with the Law and Other Instruments. Except as otherwise
provided in the Agreement and in the Exhibits annexed thereto, the business and
operations of HumaScan have been and are being conducted in all material
respects in accordance with all applicable laws, rules and regulations of all
authorities which affect HumaScan or its properties, assets or businesses
including, but not limited to, the Assets. To the best of its knowledge,
HumaScan owes no sales or use taxes to the New Jersey Department of Taxation.
The performance of the Agreement shall not result in any breach of, or
constitute a default under, or result in the imposition of any lien or
encumbrance upon any property of HumaScan or cause an acceleration under any
arrangement, agreement or other instrument to which HumaScan is a party or by
which any of its assets are bound. HumaScan has performed in all respects all of
its obligations which are, as of the date of the Agreement, required to be
performed by it pursuant to the terms of any such agreement, contract or
commitment which may in any manner effect the Assets or HumaScan=s rights
pursuant to the License Agreement. Although HumaScan's representation and
warranty with respect to owing no sales or use taxes to the New Jersey
Department of Taxation is limited by the phrase, "to the best of its knowledge,"
if any sales or use taxes are due to the New Jersey Department of Taxation, then
regardless of HumaScan's knowledge, HumaScan shall be obligated to indemnify
Scantek pursuant to Article "7" of the Agreement.
2
4. Value of the Assets The estimated acquisition cost to Scantek was in
excess of Two Million Five Hundred Thousand ($2,500,000) Dollars.
5. Litigation. There are no legal, administrative, arbitration, or other
proceeding or governmental investigations affecting the Assets or with respect
to any matter with respect to the License Agreement, pending or to its knowledge
threatened, by or against, HumaScan whether or not covered by insurance. Neither
HumaScan nor its officers or directors are subject to any order, writ,
injunction, or decree of any Court, department, agency, or instrumentality,
affecting HumaScan.
6. No Approvals. No approval of any governmental authority is
required by HumaScan in connection with the transactions which are provided
for in the Agreement.
7. Broker. HumaScan has not had any dealing with respect to this
transaction with any business broker, firm or salesman, or any person or
corporation, investment banker or financial advisor who is or shall be entitled
to any broker's or finder's fee or any other commission or similar fee with
respect to the transactions provided for in the Agreement.
8. Title. HumaScan represents and warrants that it is the lawful owner of
and has good and marketable title to and has the right to assign and transfer
the Assets to Scantek. HumaScan further represents and warrants that the Assets
are free and clear of all liens, mortgages, pledges, security interests,
restrictions, prior assignments, encumbrances, leases and claims of any kind or
nature whatsoever.
9. Complete Disclosure. No representation or warranty of HumaScan which is
contained
3
in the Agreement, or in a writing furnished or to be furnished pursuant to the
Agreement contains or shall contain any untrue statement of a material fact,
omits or shall omit to state any material fact which is required to make the
statements which are contained herein or therein, in light of the circumstances
under which they were made, not misleading. There is no material fact relating
to the business, affairs, operations, conditions (financial or otherwise),
prospects of HumaScan or the Assets which would adversely affect same which has
not been disclosed to Scantek in the Agreement.
10. No Defense. It shall not be a defense to a suit for damages by Scantek
for any misrepresentation or breach of covenant or warranty that Scantek knew or
had reason to know that any covenant, representation or warranty in the
Agreement or documents furnished or to be furnished to Scantek pursuant to the
Agreement contained untrue statements.
11. No Shareholder Approval Scantek acknowledges that HumaScan is not
seeking approval of its shareholders for the transactions contemplated by the
Agreement. The foregoing acknowledgment shall not be deemed to be an admission
that shareholders' approval is required for the transactions contemplated by the
Agreement.
12. Survival of Covenants and Agreements; Limited Survival of
Representations and Warranties.
A. The covenants and agreements set forth in the Agreement and in
certificates and Exhibits delivered pursuant thereto shall survive the Closing.
B. The following representations and warranties shall survive the
Closing:
(i) The last sentence of Paragraph "C" of Article "10" of
the Agreement;
(ii) Paragraph "F" of Article "10" of the Agreement;
4
(iii) Paragraph "H" of Article "10" of the Agreement; and
(iv) any claims for fraud and intentional misrepresentations
with respect to any representations and warranties made in or in connection with
the Agreement and in certificates and Exhibits delivered pursuant thereto.
C. Except as otherwise provided in Subparagraph "(ii)" of Paragraph
"L" of Article "10" of this Agreement, the representations and warranties made
in or in connection with the Agreement and in certificates and Exhibits
delivered pursuant hereto shall not survive the Closing,
Dated: New York, New York
March 15, 1999
HumaScan, Inc.
By:____________________________
Xxxxx Xxxxxxxx, President
STATE OF ____________ )
)ss.:
COUNTY _____________ )
On the 15th day of March, 1999 before me personally came Xxxxx Xxxxxxxx to
me known, who, being by me duly sworn, did depose and say that he resides at
___________________________ that he is the President of HumaScan, Inc., the
corporation described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation, and that he signed his name thereto by like order.
-----------------------
Notary Public
5
EXHIBIT M
CERTIFICATE OF PERFORMANCE
OF OBLIGATIONS OF HUMASCAN, INC.
In accordance with Article "13" of the settlement agreement dated as of
the 11th day of March, 1999 by and between HumaScan, Inc. (AHumaScan@) and
Scantek Medical, Inc., ("Scantek"), HumaScan hereby represents, warrants and
covenants that HumaScan has performed all obligations and complied with all
covenants required by the Agreement to be performed or complied with by it prior
to the Closing Date.
HUMASCAN, INC.
Dated: New York, New York By: ______________________________
March 15, 1999 Xxxxx Xxxxxxxx, President
EXHIBIT N
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT
Zigmed Corporation
A corporation organized under the laws of the State of Delaware,
as RELEASOR,
in consideration of the sum of one dollar ($1.00) and for other good and
valuable consideration received from
HumaScan, Inc., 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
as RELEASEE,
receipt whereof is hereby acknowledged and discharges
HumaScan, Inc., 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
the RELEASEE, RELEASEE'S heirs, executors,
administrators, successors and assigns from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, which against the RELEASEE, the
RELEASOR, RELEASOR'S successors and assigns ever had, now have or hereafter can,
shall or may have, for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
RELEASE,
The words "RELEASOR" and "RELEASEE" includes all releasors and all
releasees under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, the RELEASOR has caused this RELEASE to be executed
by its duly authorized officers and its corporate seal to be hereunto affixed
on_______________________, 1999.
IN PRESENCE OF:
----------------------------------
Zigmed Corporation
By /S/
----------------------------------
STATE OF_____________________, COUNTY OF____________________ ss.:
On ____________________, 1999 before me ___________________________
personally came _______________, to me known, who, by me duly sworn, did depose
and say that deponent resides at____________________________, that deponent is
the ______________ of Zigmed Corporation, the corporation described in, and
which executed the foregoing RELEASE, that deponent knows the seal of the
corporation, that the seal affixed to the RELEASE is the corporate seal, that it
was affixed by order of the board of______________________ of the corporation;
and that deponent signed deponent's name by like order.
-----------------------------------
If the party making payment is not the same as the party released, delete words
"as RELEASEE" and add names of parties released after the word "discharges."
EXHIBIT O
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT
HumaScan, Inc., 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
A corporation organized under the laws of the State of_________________________,
as RELEASOR,
in consideration of the sum of one dollar ($1.00) and for other good and
valuable consideration received from
Zigmed Corporation
as RELEASEE,
receipt whereof is hereby acknowledged and discharges
Zigmed Corporation
the RELEASEE, RELEASEE'S heirs, executors,
administrators, successors and assigns from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, which against the RELEASEE, the
RELEASOR, RELEASOR'S successors and assigns ever had, now have or hereafter can,
shall or may have, for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
RELEASE,
The words "RELEASOR" and "RELEASEE" includes all releasors and all
releasees under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, the RELEASOR has caused this RELEASE to be executed
by its duly authorized officers and its corporate seal to be hereunto affixed
on_______________________, 1999.
IN PRESENCE OF:
----------------------------------
HumaScan, Inc.
By /S/
----------------------------------
Xxxxx X.X. Xxxxxxxx
STATE OF_____________________, COUNTY OF____________________ ss.:
On ____________________, 1999 before me ____________________________
personally came Xxxxx X.X. Xxxxxxxx, to me known, who, by me duly sworn, did
depose and say that deponent resides at_______________________________, that
deponent is the President of HumaScan, Inc., the corporation described in, and
which executed the foregoing RELEASE, that deponent knows the seal of the
corporation, that the seal affixed to the RELEASE is the corporate seal, that it
was affixed by order of the board of______________________ of the corporation;
and that deponent signed deponent's name by like order.
-----------------------------------
If the party making payment is not the same as the party released, delete words
"as RELEASEE" and add names of parties released after the word "discharges."
EXHIBIT P
ASSIGNMENT
ASSIGNMENT, dated as of the 15th day of March, 1999 by and between
HumaScan, Inc., a Delaware corporation, with an address at 000 Xxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (the "Assignor"), as assignor, and Scantek Medical,
Inc. a Delaware corporation, with an address at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 (the Assignee"), as assignee.
W I T N E S S E T H :
WHEREAS, the Assignor has entered into agreements with its employees,
agents and other third parties all of which are in the form which is annexed
hereto and made a part hereof as Exhibit "A" (the "Agreements") ; and
WHEREAS, pursuant to a certain settlement agreement dated as of the 26th
day of February, 1999 by and between the Assignor and the Assignee, the Assignor
has agreed to assign the Agreements to the Assignee.
NOW THEREFORE, in consideration of good and valuable consideration,
receipt of which is hereby acknowledged, the Assignor hereby does the following:
1. The Assignor hereby represents and warrants that it has entered into
Agreements with each of the individuals who are listed on Exhibit "B" (the
"Individuals") which is annexed hereto and made a part hereof.
2. The Assignor hereby assigns to the Assignee any and all rights which it
has pursuant to the Agreements with all of the Individuals.
3. Without in any way limiting this Assignment, and without in any way
limiting the Assignee's right to enforce its rights pursuant to this Agreement,
the Assignor hereby retains its rights, if any, against any of the Individuals
for violation of Assignor's rights, if any, as distinguished from Assignee's
rights, pursuant to the Agreements.
1
4. The Assignor hereby represents, warrants and covenants that it has the
right, power and authority to enter into this Assignment.
5. The Assignor agrees to execute any and all such other further
instruments and documents, and to take any and all such further actions, which
are reasonably required to effectuate this Assignment and the intents and
purposes hereof.
IN WITNESS WHEREOF, the Assignor has executed this Agreement as of the
date first above written.
HumaScan, Inc.
--------------------------
By:Xxxxx Xxxxxxxx, President
STATE OF ____________ )
)ss.:
COUNTY _____________ )
On the 15th day of March, 1999 before me personally came Xxxxx X.X.
Xxxxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________ that he is the President of HumaScan, Inc.,
the corporation described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name thereto by like
order.
-----------------------
Notary Public
2
EXHIBIT Q
DESCRIPTION OF BUSINESS
Scantek Medical, Inc. is a medical device company engaged in
manufacturing, marketing and the sales of temperature sensing medical products
and other medical devices for screening and diagnostic purposes, including, but
not limited to, the BreastAlertJ Differential Temperature Sensor.
