Exhibit 10.2
SETTLEMENT AGREEMENT
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THIS SETTLEMENT AGREEMENT ("Settlement") dated March 31, 2011 is made by and
between Competitive Technologies, Inc. ("CTTC"), and Life Episteme SARL ("LEG"),
collectively referred to as the "parties."
RECITALS
A. On February 16, 2009, CTTC entered into a distribution agreement
("Agreement") with Dr. Domenico Pecorini for the Calmare MC-5A pain device
("Unit") covering Italy and certain other countries.
B. Dr. Pecorini assigned the Agreement to LEG on October 21, 2009.
C. The Agreement contained a minimum purchase requirement for the
number of
Units that LEG must purchase from CTTC for resale in order for LEG to meet its
obligations under the Agreement.
D. The Agreement calls for LEG to prepay for Units ordered by LEG from
CTTC.
E. Between September 29, 2009 and July 21, 2010, CTTC shipped 110 units
to LEG.
F. LEG has made payment to CTTC for 55 Units, but has not paid CTTC
for 55 units ("55 unpaid Units"). LEG has objected to payment for the 55 Unpaid
Units raising technical and administrative issues, but CTTC has not accepted
those objections as valid.
G. LEG organized Life Episteme Italia srl ("LEI") as a joint venture
company to be a sub-distributor of Units; Hospital Consulting s.p.a. acquired
49% of this joint venture company at the end of 2009.
H. On December 21, 2010, CTTC gave LEG notice of the termination of the
Agreement.
(I. Intentionally Omitted)
J. On January 18, 2011, CTTC gave LEG notice of the exercise of CTTC's
reclamation rights to the 55 unpaid Units under the applicable laws of the State
of Connecticut, U.S.A. The 55 unpaid Units have now been reclaimed by CTTC and
have been contracted for sale to LEI under an agreed purchase and payment
schedule.
K. As a consequence of CTTC's exercise of the right of reclamation as
mentioned above, CTTC and LEG acknowledge that the 55 unpaid Units are the
exclusive property of CTTC which has successfully reclaimed the Units and that
LEG releases any claim to any right, title or interest in those 55 Units in
accordance with this Agreement.
L. CTTC and LEG desire to enter into this Settlement Agreement
("Settlement")
to settle fully and finally all matters.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties in this Settlement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Rescission of Sale of 55 Unpaid Units. The parties acknowledge that LEG
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has not paid CTTC for 55 Units, and that CTTC has undisputed ownership of those
55 unpaid Units following CTTC's rescission of the sale, reclamation of the 55
unpaid Units, and issuance of a notice "zeroing out" the previous invoice for
those 55 unpaid Units.
2. New Sale of 53 Unpaid Units. The Parties acknowledge that CTTC has now
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sold to LEI 53 out of those 55 unpaid reclaimed Units, LEG hereby executes the
legal and administrative documentation (attached addendum A: formal
"liberatoria") for transfer to LEI of warehouse tickets to the 52 Units,
currently deposited at "Magazzini Generali della Brianza" in Concorezzo as the
outsourced
warehouseman contracted by LEG an 1 unit currently located at European Hospital
in Rome. LEG shall provide all necessary assistance to the forwarder contracted
by CTTC to execute the physical transfer to CTTC or its designee of custody and
control of the 53 Units in Concorezzo and Rome.
3. No-Charge Demonstration Loans. Both Parties acknowledge that 2 Units, out
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of the 55 unpaid Units reclaimed by CTTC, are now subject to no-charge
demonstration loans made by LEG to Hospital Bambino Gesu in Rome. The Parties
acknowledge that CTTC shall retain all right, title and interest in these two
Units, and LEG confirms that it has no right, title or interest in those two
Units.
4. Confirmation of Termination of Distributorship. The parties agree that
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all of LEG'S distribution and LEI's sub-distribution rights for the sale of the
Units are terminated. LEG shall not have any right to purchase Units from CTTC
or to resell Units to any other party. Beyond the 55 unpaid Units discussed
above in which LEG relinquishes all rights by this Agreement, any future
distribution rights of LEI would be subject of a separate agreement to which LEG
shall not be a party. LEG's Distributor Agreement and all involvement,
liabilities, obligations of any nature of LEG with the Units, customers, CTTC
and LEI shall be terminated upon execution of this Agreement, provided, however,
that any transitional involvement of any member or principal of LEG shall not
exceed that which is necessary to facilitate the physical transfer of the Units
or otherwise to effectuate this Agreement.
5. Further Consideration;Execution of Necessary Additional Documents. Each
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of the parties covenants and agrees to execute such additional documents as may
reasonably required in order to complete this Settlement.
6. Entire Understanding; Modification; Waiver. This Settlement contains the
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entire understanding of the parties relating to the subject matter and
supersedes all prior and contemporaneous understandings, representations,
agreements, and courses of dealing, whether oral or written, between the parties
concerning this subject matter. This Settlement may not be modified orally, and
no change, termination or waiver of any provision contained herein shall be
binding unless in writing and signed by the party to be bound. No waiver by any
party of a breach of any provision of this Settlement shall be construed as a
waiver of any subsequent or other breach. Time is of the essence in the
performance of this Settlement. No party shall be a third-party beneficiary of
this Settlement or underlying Agreement.
7. Construction; Severability; Jurisdiction. This Settlement shall be
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enforced, governed, and construed in accordance with the laws of the State of
Connecticut, U.S.A., without resort to its choice of law or other conflict of
laws provisions. The invalidity or unenforceability of any provision of this
Settlement shall not invalidate or render unenforceable any other provision of
this Settlement. The parties agree that any dispute between the parties shall
be brought before the American Arbitration Association in Washington, D.C.,
U.S.A., and that only a court in the State of Connecticut, U.S.A. shall have
jurisdiction or venue over any dispute and consequent arbitration. LEG consents
to jurisdiction in Connecticut.
8. Costs and Attorney's Fees. Each party shall be responsible for its own
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attorney's fees, expenses and costs in connection with the Agreement and this
Settlement In the event of any dispute between the parties that results in the
commencement of any action or proceeding by one party against the other, the
unsuccessful party in such action or proceeding shall reimburse the successful
party for its reasonable attorney's fees, expenses and costs incurred in
connection with that action or proceeding.
9. Counterparts and Faxed Signatures. This Settlement Agreement may be
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executed in separate counterparts, each of which shall be considered an original
and all of which together shall be deemed to be one and the same agreement.
10. Notices. All notices to be provided by one party to the other shall be
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in writing and shall be deemed sufficiently given when sent facsimile
transmission with confirmation received, e-mail with acknowledgment received or
hand delivery to the other party at the following addresses:
To CTTC:
Stephen Sale, Esq. 910 16th Street,
N.W. Suite 500
Washington, D.C. 20006
Tel: (202) 872-4713
Fax: (202) 887-5137
Email: sscsq@aol.com
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To LEG
Life Episteme SAGL
Via Gregoriana, 5
00187 Rome RM
Italy
Tel. +39 06 9970-2925
Email: d.pecorini@lifeepisteme.eu
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cbn.cioffi@email.com
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With a copy to:
Avv. Giuseppe Belcastro
Piazza Cavour 1700193
Roma
tel. +39 063242704 fax +39 063215142
avv.giuseppebeicastro@gmail.com
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Each party may change its recipient(s) for notice by delivering written notice
of such change to the other parties. All notices shall be deemed received three
days after delivery by confirmed fax or acknowledged email.
11. Release of Claims by CTTC against LEG. In consideration for the promises
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in this Settlement, CTTC, and its employees, agents, successors and assigns each
agree to release, and do release and forever discharge Life Episteme SARL, its
employees, agents, successors and assigns (collectively, the "LEG Released
Parties") from any claim, obligation or liability up to and through the time of
this Settlement. Notwithstanding the foregoing, this Release shall not release
LEG Released Parties from performing their respective obligations under this
Settlement.
12. Release of Claims by LEG against CTTC. In consideration for the promises
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in this Settlement and the underlying Agreement, LEG and its principals,
members, employees, agents, successors and assigns each agree to release, and do
release and forever discharge, CTTC and its employees, agents, successors and
assigns (collectively, the "CTTC Released Parties") from any claim, obligation
or liability up to and through the time of this Settlement. Notwithstanding the
foregoing, this Release shall not release CTTC Released Parties from performing
their obligations under this Settlement. In addition, LEG and its principals,
members employees, agents, successors and assigns acknowledge both that Umberto
Marangoni, previously General Manager of LEG, is now employed by CTTC and that
this release includes any claim, obligation or liability related to the present
employment of Mr. Marangoni by CTTC or the former employment of Mr. Marangoni by
LEG.
13. No Payment; Cooperation. CTTC and LEG mutually acknowledge and agree
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that no payment whatsoever is due from each Party to the other as a consequence
of the present Settlement so long as LEG cooperates fully in the transfer of all
right, title, interest and control of the 55 Unpaid Units pursuant to this
Agreement. LEG (a) shall transfer all warehouse receipts for Unpaid Units as
directed by CTTC and (b) shall advise the warehouseman for the Unpaid Units that
only CTTC or its designee may direct any further disposition of those Unpaid
Units.
14. Non-Disparagement and Non-interference. In consideration for the
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promises in this Settlement, LEG and its principals, members, employees, agents,
successors and assigns agree (a) that the business of LEG and its employees,
agents, successors and assigns shall no longer be involved with any distributor,
customer, manufacturer or inventor of the Calmare units and (b) that LEG and its
employees, agents, successors and assigns shall not interfere with the business
of or disparage CTTC, its business, its employees, agents, successors, assigns,
distributors, customers, manufacturer, inventor, the Calmare Unit or
incorporated technology. In consideration for the promises in this Settlement,
CTTC and its employees, agents, successors and assigns agree that they shall not
interfere with the business of or disparage LEG or its employees, agents,
successors, or assigns so long as LEG shall refrain from involvement in any
further business with any distributor, customer, manufacturer or inventor of the
Calmare units.
15. Signatures and Execution. This Settlement shall not be binding upon the
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Parties until it has been duly executed by or on behalf of each Party, in which
event it shall be effective on the Effective Date. The Parties' pdf version, and
a print-out of that pdf version, of this Agreement shall have the effect, and
shall be fully binding on the parties in the same fashion, as the document with
original signatures, provided, however, that the Settlement with original
signatures shall be provided to the other Party as soon as possible.
16. Authority. The undersigned LEG, Dr. Domenico Pecorini, Simona Musio and
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Paolo Pepe hereby warrant (a) that they are authorized to execute this Agreement
personally and on behalf of LEG, (b) that all corporate formalities shall have
been fully complied with and fulfilled, and (c) that they shall provide CTTC
with any required shareholder consent or ratification no later than April 11,
2011. A copy of the document showing the authority of Dr. Domenico Pecorini,
Simona Musio and Paolo Pepe to execute this Agreement on behalf of LEG is
attached to the Agreement as Addendum B.
IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement
effective as of the date set forth above.
LIFE EPISTEME SARL
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\s\ Simona Musio
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By \s\ xxxx Simona Musio
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COMPETITIVE TECHNOLOGIES, INC. \s\ Dr. Domenico Pecorini
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Dr. Domenico Pecorini
By \s\ Johnnie D. Johnson \s\ Paolo Pepe
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Johnnie D. Johnson Paolo Pepe
Chief Executive Officer