EXHIBIT 10.5
FINAL SETTLEMENT AGREEMENT AND UNCONDITIONAL RELEASE
This Final Settlement Agreement and Unconditional Release ("Settlement")
is entered into between Xxxx X. Xxxxxxx ("Xxxxxxx"), and ProUroCare, Inc.,
ProUroCare Medical, Inc. and Global Internet Communications, Inc., and their
divisions, operations, parents, subsidiaries, affiliates, management companies
or entities, predecessors, successors, insurers, and assigns, and past and
present owners, directors, stockholders, officers, trustees, agents, employees
and representatives ("PUC"). The Parties have entered into this Agreement to
fully and finally settle any and all differences between them that have arisen
out of Xxxxxxx'x employment relationship with PUC, the conclusion of that
employment relationship and Case No. CT-04-007486 pending before Hennepin County
District Court. The Parties have agreed to the following terms and conditions:
1. In consideration for the promises set forth in this Settlement, PUC
shall pay:
X. Xxxxxxx a sum of $55,008.29 as reimbursement for the loss
opportunity to exercise certain stock options. PUC will forward to Xxxxxxx a
1099 Form reflecting the foregoing payment. Xxxxxxx a sum of $10,000 as
severance pay. PUC will forward Xxxxxxx a W-2 Form reflecting the foregoing
payment.
X. Xxxxxxx Xxxxxx & Xxxxxxxx, PLLP a sum of $54,164.01 as costs and
attorneys' fees incurred in the prosecution of Case No. CT-04-007486. PUC will
forward Xxxxxxx Xxxxxx & Xxxxxxxx, PLLP a 1099 Form (Tax I.D. 00-0000000)
reflecting the foregoing payment.
X. Xxxxxxx, Street and Deinard a sum of $40,827.70 as costs and
attorneys' fees incurred in the prosecution of Case No. CT-04-007486. PUC will
forward Xxxxxxx, Street and Deinard a 1099 Form (Tax I.D. 00-0000000)
reflecting the foregoing payment.
2. In consideration for the terms and conditions set forth in this
Settlement, the Parties further agree to the following:
X. Xxxxxxx agrees that his separation from employment with PUC is
complete and permanent. PUC shall never reemploy Xxxxxxx. Xxxxxxx will not
directly, or indirectly through a union hiring hall or temporary employment
service, apply for, otherwise seek, or accept a referral for employment with PUC
at any time. PUC may use this Settlement as an absolute contractual bar for
rejecting any such application or referral.
B. Except for Case No. CT-04-007486, the Parties specifically
represent that they have not filed, nor will file, any claims, charges,
complaints, suits, or other actions against the other Party with any federal,
state or local agency or court. The Parties also agree that the other may
present this Settlement as an absolute contractual bar to any claim, charge or
lawsuit filed against that Party by the other Party, or on the other Party's
behalf.
C. The Parties agree that by the signing of this Settlement, they
irrevocably waive, and unconditionally and forever release the other Party from,
with prejudice, all damages, actions, lawsuits or claims that Party may have,
whether known or unknown, whether asserted or unasserted, whether based on
contract, tort, statute, ordinance, or common law, arising out of Xxxxxxx'x
employment with the PUC and/or the conclusion of that employment. By way of
illustration, but not limitation, this includes a waiver and release of any
rights or claims either Party may have under, or for, Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, the Fair Labor
Standards Act and any state counterpart, the Age Discrimination in Employment
Act, Minnesota Human Rights Act, the Minnesota Business Corporation Act and any
other state counterpart, Federal Family and Medical Leave Act and any state
counterpart, all as amended; libel; slander; defamation; breach of contract;
promissory estoppel; negligent hiring, retention, supervision and termination;
assault; battery; negligent and intentional infliction of emotional distress;
wages; bonuses; conciliation or small claims court claims; retaliation; and
wrongful discharge; or any other charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, suits,
rights, demands, losses, debts and/or expenses (including attorneys' fees and
costs actually incurred) of any nature. This means that the Parties are giving
up any and all rights they may have to xxx the other Party related to, in any
way, Xxxxxxx'x employment with PUC and/or the conclusion of that employment.
This waiver does not apply to claims or rights under the Age Discrimination in
Employment Act that may arise after this Settlement is executed, nor does it
apply to other rights or claims which cannot be waived by private agreement.
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D. The Parties agree that they will not disparage or otherwise
attempt to discredit each other with any media, anyone who is presently doing
business with or employed by, or with anyone that could reasonably be expected
to do business with or be employed by the other Party. The Parties agree not to
assist or encourage in any way any individual, group of individuals or entity in
bringing or pursuing a lawsuit, charge, complaint or grievance or making any
other demands against the other Party. The Parties agree that in any and all
future proceedings of whatever nature, they will testify truthfully and will
testify against the other Party only to the extent compelled to do so by a
lawful subpoena or other judicial or administrative action.
E. The Parties understand and agree that this Agreement, including
its terms, amounts and conditions, and the existence hereof, are to be kept
completely confidential except as required by law or SEC required disclosure,
provided herein, or in any action to enforce the terms of this Agreement.
Xxxxxxx may disclose this Agreement and its contents to his tax advisors or
accountants, current spouse and legal counsel, provided that any such recipient
agrees to keep the information confidential. PUC may disclose this Agreement and
its contents to its tax advisors and accountants, legal counsel, or those in
need-to-know positions. In response to inquiries regarding Case No.
CT-04-007486, the Parties will reply to the effect, "The Parties have resolved
their differences."
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X. Xxxxxxx acknowledges and agrees that the payment set forth in
Paragraph 1(A) is subject to offset, termination, cancellation or recoupment in
the event that Xxxxxxx takes any action or engages in any conduct in violation
of this Settlement.
X. Xxxxxxx understands and agrees that Xxxxxxx has twenty-one (21)
days from receipt of this Agreement during which Xxxxxxx can decide whether or
not to enter into this Agreement. During this 21-day period, Xxxxxxx may consult
with an attorney regarding all aspects of this Agreement, and agrees to the
extent Xxxxxxx desires, Xxxxxxx will and/or has availed that right. Should
Xxxxxxx sign this Agreement before the end of this 21-day period, Xxxxxxx
represents that he has done so voluntarily and without influence by PUC. Xxxxxxx
also understands that he has seven (7) days following the signing of this
Agreement to revoke Xxxxxxx'x agreement to waive any claims, and release PUC
from any liability, under the Age Discrimination in Employment Act as described
in paragraph 4 below. Xxxxxxx also understands that he has fifteen (15) calendar
days following the signing of this Agreement to rescind Xxxxxxx'x agreement to
waive any claims, and release PUC from any liability, under the Minnesota Human
Rights Act, Minn. Stat. ss. 363 as described in Paragraph 4 below. Any such
revocation or rescission must be made by delivering a written notice of
revocation to ProUroCare, Inc., c/o Xxxxxxx Xxxx, Xxx Xxxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxxxx 00000. For any revocation or rescission to be
effective, it must be received by PUC on or before the seventh (7th) or
fifteenth (15th) calendar day after Xxxxxxx executes this Agreement depending
upon the type of rescission or revocation sought. If sent by mail, the
rescission or revocation must be: (1) postmarked within the seven (7) or fifteen
(15) day period; (2) properly addressed as set forth above; and (3) sent by
certified mail, return receipt requested. Absent any such timely revocation or
rescission, the portions of paragraph 4 below in which Employee waives all
claims, and releases PUC from any liability, under the Age Discrimination in
Employment Act and the Minnesota Human Rights Act shall become effective and
enforceable.
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X. Xxxxxxx represents that while he was employed by PUC, he did not
suffer a work-related injury and is unaware of any facts or circumstances that
would support a workers' compensation claim by Xxxxxxx against PUC.
I. This Settlement does not in any way affect Xxxxxxx'x interest as
an indirect shareholder of PUC as an owner of Profile, LLC or as a shareholder
resulting from shares of PUC purchased on a public exchange; however, paragraphs
2(A) through 2(G) above apply to the PUC's Stock Option Plan.
J. The Parties' counsel shall execute and file the Joint Stipulation
For Dismissal, attached hereto as Exhibit A.
3. The Parties agree and understand that any claims or actions relating to
this Settlement shall be brought only in the State of Minnesota. The Parties
further agree that to the extent any state law shall apply to any dispute
arising out of this Settlement, Minnesota law shall apply.
4. This Settlement sets forth the entire agreement between the Parties,
and fully supersedes any and all prior discussions, offers, negotiations,
representations, letters, agreements or understandings between the Parties.
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5. If any provision of, or portion thereof, this Settlement is found to be
unenforceable, illegal or void by a court or agency of competent jurisdiction,
the other provisions, or the remainder of the unenforceable, illegal or void
provision, of this Settlement, shall remain valid and fully enforceable, and the
court or agency shall interpret the remaining provisions, or insert such other
terms, to effectuate the Parties' intent.
6. The payments described in Paragraph 1 above shall be made within five
(5) business days of PUC's counsel receiving notice that Case No. CT-04-007486
has been dismissed or the latest rescission period in paragraph 2(G) expires, so
long as Xxxxxxx has not timely rescinded his consent to any aspect of this
Agreement, whichever is later.
7. Xxxxxxx agrees to fully and completely indemnify and hold PUC harmless
for any tax liability, penalties, back payments, and interest arising out of the
payments set forth in Paragraph 1 above, ("tax costs") for Xxxxxxx'x portion of
the tax costs alleged to be owing by any tax agency or authority.
PROUROCARE, INC., PROUROCARE
MEDICAL, INC. AND GLOBAL INTERNET
COMMUNICATIONS, INC.
Dated: August 1, 2005 By: /s/ Xxxxxxx X. Xxxxxx, XX
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Xxxxxxx X. Xxxxxx, XX
I HAVE READ AND UNDERSTAND THE ABOVE AND VOLUNTARILY ENTER INTO THIS FINAL
SETTLEMENT AGREEMENT AND UNCONDITIONAL RELEASE
Dated: August 1, 2005 By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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