COUNTY OF RENSSELAER RENSSELAER POLYTECHNIC INSTITUTE, Plaintiff, SETTLEMENT AGREEMENT - against - Index No.: 229806 PRO URO CARE INC. and PROUROCARE MEDICAL, INC., Defendants.
Exhibit
10.49
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SUPREME
COURT OF THE STATE OF NEW YORK
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COUNTY
OF RENSSELAER
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_____________________________________________________
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RENSSELAER
POLYTECHNIC INSTITUTE,
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Plaintiff,
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-
against -
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Index
No.: 229806
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PRO
URO CARE INC. and PROUROCARE
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MEDICAL,
INC.,
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Defendants.
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_____________________________________________________
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This sets
forth a settlement agreement (the “Agreement”), effective as of the date
executed by all parties hereto, by and between Plaintiff Rensselaer Polytechnic
Institute (“Plaintiff”) and Defendants Pro Uro Care Inc. and ProUroCare Medical
Inc. (“Defendants”) (together, the “parties”).
WHEREAS, Plaintiff commenced
the above-captioned action against Defendants alleging claims for breach of
contract and account stated, and seeking damages in the principal amount of
$202,716.04, plus all applicable interest and penalties, based on
Defendants’ alleged failure to pay amounts due to Plaintiff from Defendants (the
“Action”); and
WHEREAS, Defendants timely
answered Plaintiff’s Complaint, denied the amount of damages claimed by
Plaintiff, and asserted various affirmative defenses; and
WHEREAS, Defendants contend
that ProUroCare Medical Inc. is not a proper party to this Action;
and
WHEREAS, Defendants contend
that the Parties had previously contractually agreed that Plaintiff’s claims
were to be resolved by arbitration; and
WHEREAS, the parties have
determined to resolve the matters in dispute without resort to further
litigation, on the terms set forth herein.
NOW, THEREFORE, in consideration of
the promises and mutual undertakings of the parties set forth herein, the
sufficiency of which is acknowledged by the parties, the parties hereby agree as
follows:
1. Payment: In
consideration of the covenants contained in this Agreement, Pro Uro Care Inc.
agrees to pay to Plaintiff the total sum of One Hundred Seventeen Thousand
Dollars ($117,000). Said payment shall be made as
follows:
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(A)
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An
initial payment of Ten Thousand Dollars ($10,000.00) due upon Defendants
execution and return of this Agreement to Plaintiff’s
counsel;
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(B)
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A
second payment of Six Thousand Dollars ($6,000) due on or before December
15, 2009;
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(C)
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A
third payment of Six Thousand Dollars ($6,000) due on or before January
15, 2010;
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(D)
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A
fourth payment of Six Thousand Dollars ($6,000) due on or before February
15, 2010;
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(E)
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A
fifth payment of Six Thousand Dollars ($6,000) due on or before March 15,
2010;
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2
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(F)
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A
sixth payment of Six Thousand Dollars ($6,000) due on or before April 15,
2010;
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(G)
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A
seventh payment of Six Thousand Dollars ($6,000) due on or before May 15,
2010;
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(H)
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An
eighth payment of Six Thousand Dollars ($6,000) due on or before June 15,
2010;
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(I)
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A
ninth payment of Six Thousand Dollars ($6,000) due on or before July 15,
2010;
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(J)
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A
tenth payment of Six Thousand Dollars ($6,000) due on or before August 15,
2010;
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(K)
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An
eleventh payment of Six Thousand Dollars ($6,000) due on or before
September 15, 2010;
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(L)
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A
twelfth payment of Six Thousand Dollars ($6,000) due on or before October
15, 2010;
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(M)
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A
final payment of Forty-One Thousand Dollars ($41,000) due on or before
November 15, 2010.
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All
payments shall be made to Plaintiff by check made payable to “Rensselaer
Polytechnic Institute” and delivered to Plaintiff’s counsel, unless Plaintiff or
its counsel shall otherwise direct in writing. In the event that any
payment is not received by Plaintiff’s counsel on or before the date due, Pro
Uro Care Inc. shall be in default of its obligations under this Agreement.
If Pro Uro Care Inc. does not cure the default within twenty (20) days,
Plaintiff may enforce the judgment by confession as set forth in Paragraph 2
below, without further notice. Once Pro Uro Care Inc. makes all
payments described in Paragraph 1 above, Plaintiff shall destroy the Confession
of Judgment.
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2. Judgment
by Confession: Pro Uro Care Inc. xxxxxx agrees to execute an
Affidavit for Judgment by Confession in the principal amount of One Hundred
Seventeen Thousand Dollars ($117,000.00) in the form annexed hereto as Exhibit A. Pro
Uro Care Inc. further agrees that if any payment provided for in Paragraph 1 is
not paid on or before the due date, and such default is not cured within twenty
(20) days of the failure to make such payment, Plaintiff shall be entitled to
record and enforce a Judgment by Confession to be obtained pursuant to the
Affidavit of Judgment by Confession, without further notice. The judgment
obtained pursuant to the Affidavit of Judgment by Confession shall include
interest at the rate of Nine Percent (9%) per annum, calculated in accordance
with New York CPLR 5001 and 5004, from the date of default. Plaintiff
shall be entitled to enforce said judgment by any lawful means. Upon the
execution of this Agreement, Pro Uro Care Inc. shall execute the Affidavit for
Judgment by Confession in the form annexed hereto as Exhibit A.
Plaintiff, or its counsel, shall retain the original executed Affidavit for
Judgment by Confession.
3. Release: In
consideration of the Settlement Payment described in Paragraph 1 above, the
parties and their agents, officers, directors, parents, subsidiaries,
affiliates, attorneys, employees, predecessor companies, and successors in
interest hereby fully release and forever discharge one another and their
respective agents, officers, directors, parents, subsidiaries, affiliates,
agents, attorneys, employees, predecessor companies, and successors in interest
of and from all actions, causes of actions, suits, liability, debts, dues, sums
of money, covenants, contracts, controversies, agreements, damages, judgments
and demands whatsoever, in law, admiralty or equity, which against one another,
any of the parties ever had, now has, or may have, for, upon, or by reason of
any matter, cause or thing, whatsoever, including, but not limited to, all
claims or causes of action arising out of or in any way related to the matters
set forth in the other pleadings in the Action, from the beginning of the world
to the date of this release.
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4. Stipulation
of Discontinuance: The parties shall execute and file a stipulation
of discontinuance of this action. Such stipulation of discontinuance shall
be with prejudice, but without costs, disbursements or fees against any
party. The stipulation
of discontinuance shall be filed by Plaintiff’s counsel upon receipt of this
executed Agreement along with the initial payment referenced in paragraph
1(A).
5. Correspondence:
All correspondence related to this Agreement shall be mailed to the party to
whom it is directed at the address set forth below by first-class mail, or to
such other address as that party shall specify to the others in a notice given
in the manner set forth herein.
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Plaintiff
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Defendants
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Xxxxxxx
X. Xxxxx, Esq.
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Xxxxxx
X. Xxxxxxxx, Esq.
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Xxxxxxxx
Xxxxxxxx & Xxxxx LLP
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Xxxxxxxxxx
& Xxxxx, P.A.
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One
Commerce Plaza
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000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
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Albany,
New York 12260
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Minneapolis,
MN 55402
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6. Governing
Law: This Agreement shall be governed by and construed for all
purposes under the laws of the State of New York without regard to choice of law
or conflict of laws rules.
7. Binding
and Inure: This Agreement shall apply to, be binding upon, and
inure to the benefit of the parties, their officers, directors, agents,
servants, employees, corporate affiliates and or subsidiaries, predecessors,
heirs, executors, administrators, successors and assigns.
8. Entire
Agreement: This Agreement constitutes the entire understanding
between the parties with respect to settlement of this action and supersedes and
replaces in all respects all prior agreements or understandings, whether formal
or informal, oral or in writing, among the parties or between any of them with
respect to the settlement of this Action. This Agreement may only be
amended or terminated by a writing signed by all parties hereto.
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9. No
Presumption Against Drafter: The parties agree that neither party
takes responsibility for the drafting of this Agreement and the draftsman’s
presumption shall be held inapplicable in any action interpreting or enforcing
this Agreement.
10. Authority
to Execute: Each of the persons signing this Agreement hereby
represents and warrants that he or she has the authority to enter this Agreement
and bind the party on whose behalf he or she is signing.
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PRO URO CARE
INC.
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By:
/s/
Xxxxxxx X. Xxxxxxx
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[NAME]
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STATE
OF MINNESOTA
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)
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ss.:
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COUNTY
OF HENNEPIN
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)
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On the
7th day of DECEMBER, 2009 before me personally came XXXXXXX XXXXXXX to me known,
being to me duly sworn, did depose and say that he is an officer of ProUroCare
Inc., the corporation described herein and which executed the above instrument;
and that he signed his name thereto with the authority to bind said
corporation.
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/s/
Xxxxxx Xxxx
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Notary
Public
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7
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By:
/s/
Xxxxxxx X. Xxxxxxx
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[NAME]
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STATE
OF MINNESOTA
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)
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ss.:
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COUNTY
OF HENNEPIN
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)
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On the
7th day of DECEMBER, 2009 before me personally came XXXXXXX XXXXXXX to me known,
being to me duly sworn, did depose and say that he is an officer of ProUroCare
Medical Inc., the corporation described herein and which executed the above
instrument; and that he signed his name thereto with the authority to bind said
corporation.
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/s/
Xxxxxx Xxxx
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Notary
Public
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8
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RENSSELAER
POLYTECHNIC INSTITUTE
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By:
/s/
Xxxxxxx X. Xxxxxxxx
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Xxxxxxx
X. Xxxxxxxx, Secretary of the Institute
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STATE
OF NEW YORK
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)
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ss.:
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COUNTY
OF RENSSELAER
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)
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On the
1st day of December, 2009 before me personally came Xxxxxxx X. Xxxxxxxx, to me
known, being to me duly sworn, did depose and say that he is the
Secretary of Rensselaer Polytechnic Institute, the educational institution
described herein and which executed the above instrument; and that he signed his
name thereto with the authority to bind said educational
institution.
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/s/
Xxxxxx Xxxxxxxxxx
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Notary
Public
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9
