EXHIBIT 10.13




 




AGREEMENT




 




THIS

AGREEMENT is effective as of November 7, 2001 (the “Effective Date”) by and

between HealtheTech, Inc., a Delaware corporation with offices located at 523

Park Point Drive, Golden, Colorado 80401 (“HET”), and Sensors for Medicine

and Science, Inc., a Delaware corporation having offices at 12321 Middlebrook Road,

Suite 210, Germantown, Maryland 20874 (“SMSI”).




 




WHEREAS,

HET and SMSI are parties to a License Agreement dated August 17, 1999 and

subsequently amended on October 30, 1999 and March 31, 2000 (collectively

hereinafter the “1999 Agreement”), relating to the development and use of

oxygen sensor technology; and




 




WHEREAS,

SMSI has performed various engineering and development services for HET in the

years 2000 and 2001 relating to oxygen sensor technologies, wherein the scope

of said services are agreed by the parties to be outside the original

contemplated scope of development services contemplated by the 1999 Agreement

(“Additional Development Services”), and wherein such services are not or have

not been specifically reimbursable pursuant to any other purchase order issued

by HET, and the parties wish to resolve any differences as to the value of, and

remuneration for, said Additional Development Services, under the terms and

conditions herein;




 




NOW,

THEREFORE, in consideration of the promises and agreements set forth herein,

the parties, each intending to be legally bound hereby, do agree as follows.




 




1.             VALUE ASSIGNED.  The parties hereby assign a total value of

$687,983.00 (all dollars herein are U.S. dollars) for any and all, known or

unknown, Additional Development Services rendered in 2000 and 2001 for or on

behalf of HET by SMSI and its agents or “Affiliates” (as defined in the 1999

Agreement).




 




2.             AMOUNTS ALREADY PAID.  It is agreed by the parties that HET has

already paid to SMSI, and SMSI has already received, a payment in the amount of

$102,195.00 towards the Additional Development Services.




 




3.             OUTSTANDING BALANCE.  It is therefore agreed by the parties that

as a result of the payment identified above, the total remaining value for all

Additional Development Services is therefore $585,788.00.




 




4.             PAYMENTS TO SMSI.  HET hereby agrees to pay to SMSI the

remaining balance of $585,788.00 in accordance with the following payment

schedule and terms, and SMSI agrees that fulfillment of all payments in

accordance with the following payment schedule and terms constitutes full

remuneration for any and all, known or unknown, Additional Development

Services:




 




(a)  HET shall pay to SMSI an

additional sum of $85,791.00 within ten(10) business days of the Effective Date

herein; and




 




(b)  HET shall pay to SMSI the

remaining $500,000 in the form of an additional 2% royalty on revenue received

from HET sales of Disposable Products (as defined in Section

1.4 of the 1999 License Agreement) manufactured for use with HET products

incorporating the SMSI Reusable Sensor (as defined in the 1999 License

Agreement) (hereinafter “Additional Royalty”). This Additional Royalty obligation

shall not count towards the HET minimum royalty obligation specified in Section

3.2 of the 1999 License Agreement, and shall be in addition to any other

royalty obligations specified in the 1999 




 





























 




License

Agreement.




 




(c) 

The Additional Royalty obligations specified in section 4(b) above shall

be payable to SMSI in accordance with Section 4 of the 1999 License Agreement

and shall be reported and itemized separately from other royalties payable to

SMSI under the 1999 Agreement. Additional Royalties payable to SMSI under this

Agreement shall also be subject to the records and audit provisions set forth

in Section 5 of the 1999 License Agreement. In the event that the cumulative

payable Additional Royalty payments do not equal the remaining $500,000.00 by

January 15, 2003, HET shall pay to SMSI a lump-sum equal to the difference

between the $500,000 and cumulative total Additional Royalty payments made

payable by that date and upon payment of such a lump-sum, the Additional

Royalty payments shall cease.




 




5.             OTHER DEVELOPMENT WORK.  It is agreed by the parties that, unless

otherwise agreed in writing by the parties, any additional development work

undertaken by or on behalf of SMSI in furtherance of meeting the requirements

of the oxygen sensor specification defined in Appendix 13.2 of the 1999 License

Agreement shall be at SMSI’s sole expense. Nothing herein shall be construed as

relieving HET of the obligation to pay to SMSI the full amount of the separate

Oxygen Sensor Development Fee described in Section 13.3 of the 1999 Agreement.




 




6.             MISCELLANEOUS TERMS.  Any payments to SMSI under this Agreement

shall be made to the SMSI address specified above. This Agreement shall be

governed by and construed in accordance with the laws of the state of Delaware,

excluding conflict of laws principles. No rights or licenses are granted to HET

hereunder.




 




IN

WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be

executed by its duly authorized representative.




 




	

  HealtheTech,

  Inc.


  	

  Sensors

  for Medicine and


  Science, Inc.


  
	

   


  	

   


  
	

  By:


  	

  /s/

  Noel Johnson


  	

   


  	

  By:


  	

  /s/

  Marc R. Schneebaum


  	

   


  
	

   


  	

  Noel

  Johnson, PhD


  	

   


  	

  Marc

  R. Schneebaum


  	

   


  
	

   


  	

  Chief

  Operating


  	

   


  	

  President

  and CEO


  	

   


  
	

   


  	

  Officer


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Date:


  	

  /s/

  11/08/01


  	

   


  	

  Date:


  	

  /s/

  11/07/01


  	

   


  
							





 




2