**EXHIBIT 10.13**

 

AGREEMENT

 

THISAGREEMENT is effective as of November 7, 2001 (the “Effective Date”) by andbetween HealtheTech, Inc., a Delaware corporation with offices located at 523Park Point Drive, Golden, Colorado 80401 (“HET”), and Sensors for Medicineand 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 andsubsequently amended on October 30, 1999 and March 31, 2000 (collectivelyhereinafter the “1999 Agreement”), relating to the development and use ofoxygen sensor technology; and

 

WHEREAS,SMSI has performed various engineering and development services for HET in theyears 2000 and 2001 relating to oxygen sensor technologies, wherein the scopeof said services are agreed by the parties to be outside the originalcontemplated scope of development services contemplated by the 1999 Agreement(“Additional Development Services”), and wherein such services are not or havenot been specifically reimbursable pursuant to any other purchase order issuedby HET, and the parties wish to resolve any differences as to the value of, andremuneration for, said Additional Development Services, under the terms andconditions 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 orunknown, Additional Development Services rendered in 2000 and 2001 for or onbehalf of HET by SMSI and its agents or “Affiliates” (as defined in the 1999Agreement).

 

2.             AMOUNTS ALREADY PAID.  It is agreed by the parties that HET hasalready 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 thatas a result of the payment identified above, the total remaining value for allAdditional Development Services is therefore $585,788.00.

 

4.             PAYMENTS TO SMSI.  HET hereby agrees to pay to SMSI theremaining balance of $585,788.00 in accordance with the following paymentschedule and terms, and SMSI agrees that fulfillment of all payments inaccordance with the following payment schedule and terms constitutes fullremuneration for any and all, known or unknown, Additional DevelopmentServices:

 

(a)  HET shall pay to SMSI anadditional sum of $85,791.00 within ten(10) business days of the Effective Dateherein; and

 

(b)  HET shall pay to SMSI theremaining $500,000 in the form of an additional 2% royalty on revenue receivedfrom HET sales of Disposable Products (as defined in Section1.4 of the 1999 License Agreement) manufactured for use with HET productsincorporating the SMSI Reusable Sensor (as defined in the 1999 LicenseAgreement) (hereinafter “Additional Royalty”). This Additional Royalty obligationshall not count towards the HET minimum royalty obligation specified in Section3.2 of the 1999 License Agreement, and shall be in addition to any otherroyalty obligations specified in the 1999 

 

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LicenseAgreement.

 

(c) The Additional Royalty obligations specified in section 4(b) above shallbe payable to SMSI in accordance with Section 4 of the 1999 License Agreementand shall be reported and itemized separately from other royalties payable toSMSI under the 1999 Agreement. Additional Royalties payable to SMSI under thisAgreement shall also be subject to the records and audit provisions set forthin Section 5 of the 1999 License Agreement. In the event that the cumulativepayable Additional Royalty payments do not equal the remaining $500,000.00 byJanuary 15, 2003, HET shall pay to SMSI a lump-sum equal to the differencebetween the $500,000 and cumulative total Additional Royalty payments madepayable by that date and upon payment of such a lump-sum, the AdditionalRoyalty payments shall cease.

 

5.             OTHER DEVELOPMENT WORK.  It is agreed by the parties that, unlessotherwise agreed in writing by the parties, any additional development workundertaken by or on behalf of SMSI in furtherance of meeting the requirementsof the oxygen sensor specification defined in Appendix 13.2 of the 1999 LicenseAgreement shall be at SMSI’s sole expense. Nothing herein shall be construed asrelieving HET of the obligation to pay to SMSI the full amount of the separateOxygen Sensor Development Fee described in Section 13.3 of the 1999 Agreement.

 

6.             MISCELLANEOUS TERMS.  Any payments to SMSI under this Agreementshall be made to the SMSI address specified above. This Agreement shall begoverned 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 HEThereunder.

 

INWITNESS WHEREOF, each of the parties hereto has caused this Agreement to beexecuted 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 |   |
|                    |                                          |  |  |  |  |  |

 

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