EXHIBIT 10.15
A G R E E M E N T
-----------------
THIS AGREEMENT is made and entered into this 25th day of April, 1997,
by and among Reliv' International, Inc. ("Reliv"), Avogen, Inc. ("Avogen"),
Conkle & Olesten PLC ("Conkle") and Richard Huber ("Huber").
WHEREAS, Reliv and Avogen entered into an agreement dated July 1, 1995,
whereby Avogen granted Reliv a certain license for the marketing and sale of a
skin care line of products utilizing technology developed by Avogen (the "Avogen
Agreement");
WHEREAS, Reliv, Avogen and Conkle entered into an agreement dated July
1, 1995, whereby Conkle assigned its rights in such technology to Avogen, in
order to allow Avogen to enter into the Avogen Agreement with Reliv (the "Conkle
Agreement");
WHEREAS, Reliv and Huber entered into an agreement dated July 1, 1995,
whereby Huber was to provide certain consulting services to Reliv (the "Huber
Consulting Agreement");
WHEREAS, certain disputes have arisen between the parties relating to
such agreements resulting in a mediation proceeding before Judge Eli Chernow, as
mediator (the "Mediation");
WHEREAS, the parties have reached a settlement of their disputes;
NOW, THEREFORE, in consideration of the premises and of the terms,
covenants and conditions hereinafter contained, the parties hereto agree as
follows:
1. Amendment to Avogen Agreement. The Avogen Agreement shall be amended
by including the following provisions effective as of the date of this
Agreement:
1.1 Transfer of Technology. Upon payment of the sum specified
in paragraph 1.2 below, Avogen and Huber transfer to Reliv the
Technology and agree to transfer all technical information regarding
the production of MW302 to Reliv and will cooperate fully with Reliv to
effect such transfer. Reliv hereby designates David Huesgen as the
individual to receive such information and promptly upon the execution
of this Agreement, Huber shall meet with such individual to transfer
such information. The transfer of information shall include an actual
demonstration of the process now in use for the production of MW302 as
well as all ingredients, methods of production and manufacture, sources
of supply, and other information necessary for production of MW302.
Such individual shall execute a confidentiality agreement and shall
agree not to use or disclose such information except as set forth in
this Agreement. Reliv agrees that it shall not disclose such technical
information nor shall Reliv use such information, unless and until
Avogen and Huber shall (i) fail to provide MW302 to Reliv as required
by Reliv from time to time and/or (ii) Reliv and Avogen shall enter
into a separate agreement regarding the royalties payable with respect
to the production and sale of MW302.
1
1.2 Payment. Upon the transfer of the Technology as provided
in paragraph 1.1 above, Reliv shall pay the amount of $60,000. Such
amount shall constitute an advance payment of royalties and Reliv shall
be deemed to have paid all minimum royalties as provided for in
paragraph 5.3 and the Minimum Amount as provided for in paragraph 3.5
in full through June of 1997. In the event Reliv purchases any product
during such period it may apply such advance payment against any
royalties due and owing on such purchases. All of the funds provided
under this paragraph 1.2 shall be used by Avogen solely for the
purposes of developing a system for the commercial production of MW302.
The funds shall be paid to and held by Conkle and shall be released by
Conkle to Avogen only upon receipt of written verification from Avogen
that such funds will be used for the purposes as set forth above. Such
verification shall be signed by an executive officer of Avogen and
shall set forth in reasonable detail the use of such funds. Avogen
shall provide Reliv a monthly detailed accounting of the use of such
funds, in such form as Reliv shall prescribe, until such time as all
the funds have been applied.
1.3 Defective Pathway/ Past Due Minimum Royalty. The parties
agree that Avogen's liability to Reliv for the defective batches of
Pathway product delivered to Reliv shall be settled for the amount of
$30,000. The parties further agree that the total amount due and owing
Avogen by Reliv for minimum royalties under paragraph 5.3 to the date
of this Agreement is $30,000. The parties agree to apply and offset
such obligations against each other.
1.4 Supply of MW302. Avogen and Huber agree that they shall
use their best efforts to supply Reliv's requirements of MW302, as
ordered by Reliv. The MW302 shall be supplied to Reliv at Avogen's cost
of production for such product and all royalties thereon shall be
deemed paid through June of 1997. Avogen and Huber agree that they
shall provide Reliv with the best and most favored client status, and
shall not produce or sell, or have produced or sold, MW302 for any
person other than Reliv if, at the time, there shall be any outstanding
unfilled orders from Reliv therefor.
1.5 Non-Exclusive License. Commencing on July 1, 1997, the
license granted to Reliv shall be non-exclusive and Avogen shall be
entitled to make, use, sell and grant licenses to make and use the
Rights, except that Reliv shall retain the exclusive worldwide license
to practice and use the Rights with respect to the manufacture, sale or
other disposition of Reliv's current line of Commercial Products.
Reliv's exclusive license shall not extend to any product which is not
one of Reliv's then Commercial Products. Avogen will grant no license
or right that would limit or restrict the non-exclusive and exclusive
rights granted to Reliv hereunder. However, the license shall not
preclude Avogen from practicing, using, selling or licensing the Rights
in a manner that would not limit or restrict the non-exclusive and
exclusive rights granted to Reliv hereunder. For example, Avogen could
license use of MW302 in Asia, in a product not constituting a
Commercial Product. In the event Reliv and Avogen enter into an
agreement to license additional products or product lines that
constitute a line extension(s) for Reliv, Avogen will not subsequently
grant any further license or right that would limit or restrict Reliv's
rights to such products or product lines as set forth in such
agreement. Effective July 1, 1997, the provisions of
2
Sections 3.5 and 5.3 of this Agreement regarding Minimum Royalties and
Minimum Royalty Payments shall be void and of no further force or
effect.
1.6 Royalty. The royalty payable with respect to the
manufacture and sale of MW302 shall be as set forth on Exhibit A
attached hereto.
1.7 Certain Covenants. As the license granted to Reliv' shall
be non-exclusive after July 1, 1997 (except with respect to its current
Commercial Products for which the license shall remain exclusive), the
provisions of paragraph 15.1.4(a) containing covenants against
providing products utilizing the Technology in the Field to other
parties, shall not apply to products other than the Commercial
Products. The other provisions of 15.1.4(a) relating to owning or
operating a Conflicting Organization, the other provisions of paragraph
15, and paragraph 7 relating to Confidential Information shall remain
in full force and effect. The principal officers and shareholders of
Avogen have executed agreements consistent with paragraphs 7 and 15
and, to the extent that this Agreement is amended and modified with
respect to Avogen, those agreements shall also be modified to the same
extent with respect to such principals.
2. Amendment to Conkle Agreement. The Conkle Agreement shall be amended
by including the following provision:
2.1 Waiver. Conkle has entered into an agreement with Avogen
whereby it shall receive a portion of the payments made by Reliv' to
Avogen pursuant to the terms of the Avogen Agreement. Conkle agrees
that for as long as the Avogen Agreement is in effect and has not been
terminated, and for long as Conkle shall have received its portion of
payments made by Reliv' to Avogen pursuant to its agreement with
Avogen, it will not assert any claim against Reliv' with respect to the
License or Rights which are the subject of the Avogen Agreement, and
will not take any actions, as assignee of such rights, which will
affect Reliv's rights under the Avogen Agreement including, without
limitation, terminating this Agreement (Conkle agreement). In the event
Avogen fails to remit to Conkle a portion of the payments received by
Reliv' as agreed between Conkle and Avogen, Conkle shall notify Reliv'
and Reliv' shall have the right, but not the obligation, to make a
payment directly to Conkle equal to the amount Conkle is due under its
agreement with Avogen. The amount due to Avogen from Reliv' shall be
reduced by the amount of such payment to Conkle and Avogen agrees and
consents to such direct payment.
3. Mutual Release. Effective from and after the date hereof, Avogen,
Huber and Conkle, on the one hand, and Reliv, on the other, acting for
themselves and for any and all of their respective employees, agents, attorneys,
predecessors, successors and all other lawful representatives, do hereby forever
release, acquit, forgive and fully discharge each other and the other's
employees, agents, attorneys, predecessors, successors and all other lawful
representatives, from any and all past, present or future claims, losses,
actions, causes of actions, demands, rights, damages, injuries, costs, loss of
services, expenses and compensation, whether known or unknown, disclosed or
undisclosed, legal or equitable, foreseen or unforseen, fixed or contingent, by
statute, in contract or in tort or otherwise, together with any and all
consequential, special or other damages
3
relating thereto (collectively the "Claims") which each may have or ever may
have had, or which may hereafter accrue on account of or in any way arising out
of or attributable to (i) the matters set forth or averred in the Mediation,
(ii) any matters resulting out of the operation or performance of the License
Agreement, Conkle Agreement or Huber Consulting Agreement and (iii) all actions
or inactions done by any of the other party prior to the date hereof; excepting
only those Claims arising out of the failure to perform the terms, conditions
and obligations, or breach of any representation, warranty or covenant of this
Agreement and all continuing and future obligations under the Avogen Agreement,
Conkle Agreement and Huber Consulting Agreement. There are no releases between
Avogen, Huber and Conkle.
4. Remaining Terms. Except as amended hereby, the terms of the Avogen
Agreement and Conkle Agreement shall remain in full force and effect.
5. Non-Disclosure. Neither party to this Agreement shall disclose
either the existence or the contents of this Agreement to any persons except its
own authorized management personnel.
RELIV' INTERNATIONAL, INC.
By: /s/ Robert L. Montgomery
-------------------------
Authorized Officer
AVOGEN, INC.
By: /s/ Richard Huber
------------------
Authorized Officer
CONKLE & OLESTEN PLC
By: /s/ Christina Olesten
----------------------
Authorized Officer
/s/ Richard Huber
-------------------
RICHARD HUBER
4