Exhibit 10.5
[CYBERCARE LOGO]
Syzex Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
RE: LETTER OF AGREEMENT
Dear Xx. Xxxxxxxx:
The purpose of this letter (this "Agreement") is to memorialize the terms
and conditions of the following agreement by and between CyberCare Technologies,
Inc, a Georgia corporation, for itself and its Affiliates (the "Company"), and
Syzex Corporation, a Tennessee corporation ("Consultant"). As used herein, the
term "Consultant" shall collectively refer to Syzex Corporation and any employed
or engaged members of its sales and marketing staff that it designates to carry
out its duties pursuant to this Agreement:
A. APPOINTMENT AND SERVICES. The Company agrees to hire and retain
Consultant, and Consultant accepts such appointment, to (1) serve as the
Company's nonexclusive agent and to assist the Company in identifying and
entering into business relationships whereby the Company would provide hospital
and other health care facilities and organizations, and their affiliated
facilities, as listed on EXHIBIT A attached hereto, and amended from time to
time in accordance with this Agreement (collectively, "Business Affiliates")
that are engaged or assist in the provision of health care services and are
interested in utilizing equipment, products and services in connection with the
Company's CyberCare System (as defined below) which includes the Company's
Electronic Housecall(R) products ("EHC(TM)"), and (2) perform the services set
forth below all upon the terms and conditions herein set forth.
It is acknowledged by the parties that the CyberCare System ("The
CyberCare System"), is a patented technology for the remote monitoring of
individuals for medical and related purposes that features several EHC(TM)
models of multifunctional units ("Patient Units") and caregiver access terminals
("Provider Units", and collectively with Patient Units, "Units") linked through
a virtual private network (the "CyberCare 24 Network(TM)") and other hardware,
software and systems, intended to be implemented primarily (but not exclusively)
by third party payors (including HMOs, PPOs, health plans, insurance companies,
health care facilities, provider networks, hospital systems, health care
delivery systems, employers, self-funded employer plans, unions, governmental
authorities or agencies (including any governmental payor or health care program
or agency)) and their affiliates, including healthcare risk contractors
(collectively "Payors"), for use by various health care service providers
(including nurses, physicians, physician assistants and/or case managers, etc.)
(collectively "Providers") and those authorized members, enrollees,
beneficiaries, insureds, patients and other persons for whom Payors are
responsible, in whole or in part, for the provision or cost of medical items
and/or services
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(collectively, "Patients"), in connection with Payors' efforts to improve
Patient care and better control the cost of such care.
Consultant agrees to perform or cause to be performed the following
material services and/or functions in connection with the engagement hereunder:
1. Advise the Company with respect to any sales opportunity with a
Business Affiliate concerning The CyberCare System; provided, however, that the
Company shall have sole discretion regarding whether any such sales opportunity
shall be pursued and whether such opportunity is compatible with its business
plan for The CyberCare System;
2. Promote the Company, its business (and any of its Affiliates'
businesses), and its business plan for The CyberCare System, as directed by the
Company;
3. Assist the Company, as reasonably requested, in introductions to
and negotiations with a Business Affiliate and provide the Company with regular
and periodic written status reports concerning proposed introductions and
negotiations;
4. Act as liaison between the Company and each Business Affiliate;
5. Advise and assist the Company with respect to information
disseminated to and received from Business Affiliates; and
6. Promote, develop and assist in the implementation and
consummation of agreements between the Company and Business Affiliates,
including, but not limited to, the implementation and consummation of the
arrangements and/or agreements whereby a Business Affiliate makes use of the
CyberCare System, or otherwise utilizes, purchases, acquires, leases, licenses,
sells, resells or uses EHC(TM) hardware, software, equipment, items or services,
including the arrangements contemplated under Section C.4 below whereby a
Business Affiliate purchases Units and "Network Services" (as defined below).
Notwithstanding anything to the contrary, Consultant represents, warrants
and covenants that during the term of this Agreement the Company shall be
provided and receive exclusive rights to provide "telehealth services" for all
Business Affiliates, including all home health agencies, skilled nursing
facilities, assisted living facilities, hospice facilities, medical clinics and
other health care facilities operated, managed or controlled by such Business
Affiliates.
B. BUSINESS AFFILIATES. Notwithstanding anything to the contrary herein,
Consultant shall notify the Company in writing prior to initial contact with
each Business Affiliate not listed on Exhibit A ("Proposed Business Affiliate")
that Consultant intends to solicit for the purpose of performing its duties
under this Agreement. Each Proposed Business Affiliate that Consultant intends
to contact shall be subject to advance approval by the Company, which approval
shall not be unreasonably delayed or withheld. Except as otherwise mutually
agreed or as otherwise set
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forth herein, during the term hereof, Consultant shall serve as the exclusive
agent for all Business Affiliates and all Proposed Business Affiliates approved
by the Company. Consultant shall provide the Company with regular written
communications and progress reports regarding the development of the
relationship with each Business Affiliate.
C. OBLIGATIONS OF THE COMPANY. Subject to the terms and conditions hereof,
in consideration for the Consultant's performance of its responsibilities and
duties hereunder, and in exchange for the covenants and services provided by
Consultant pursuant to this Agreement, the Company agrees to the following:
1. DEMONSTRATION UNITS. To provide up to 50 Units (including an
appropriate mix of Patient Units [both broadband and "POTS" units], peripheral
devices and Provider Units) to be used in "back-to-back" set-up configurations
for demonstration purposes in connection with Consultant's marketing the
CyberCare System to Business Affiliates. Within 30 days following termination or
expiration of this Agreement, all demonstration units provided pursuant to this
Agreement shall be returned to the Company, at Consultant's expense, in working,
undamaged condition (reasonable wear and tear excepted).
2. TRAINING. To provide training, at no cost or expense to
Consultant, at the Company's Boynton Beach, Florida offices, for up to five (5)
of Consultant's sales and marketing staff (including Xxx Xxxxxxxx) to become
reasonably familiar with the CyberCare System, its components, operations and
capabilities.
3. MARKETING FEE. To cause CyberCare, Inc. (parent company of the
Company) (the "Parent") to issue to Consultant such number of shares of
restricted stock of the Parent (rounded up for fractional shares) that shall be
equal in value to $200,000, such number of shares to be calculated based on the
closing bid price for shares of stock of the Parent on the date this Agreement
is executed by the parties (the "Marketing Fee"). The Marketing Fee shall serve
as an advance against the "Commission" payments described below, but shall not
be subject to disgorgement or charge-back in the event sufficient Unit sales to
Business Affiliates are not realized.
4. UNIT SALES COMMISSION. If, as a result of Consultant's marketing
efforts, the Company sells Units to a Business Affiliate, the Consultant shall
be entitled to receive five percent (5%) of the amount actually collected by the
Company from such Unit sales (but specifically excluding sales, charges or fees
generated from any software products, network services, care management or other
items or services ("Network Services"), and specifically excluding any taxes, or
other similar amounts assessed upon the sale of such equipment) (the
"Commission"). Notwithstanding the foregoing, the Marketing Fee shall serve as
an advance against such Commission, and the shares representing the Marketing
Fee shall be issued and delivered to Consultant within twenty (20) days
following the Effective Date and, furthermore, once Commission equaling $200,000
has been generated from Unit sales, the Commission percentage for all subsequent
Unit sales shall be increased to ten percent (10%) and all
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subsequent Commission payments shall be payable in cash. Except as otherwise
provided in this paragraph, Commission payments will be made monthly based on
collections from Unit sales for the previous month.
5. NETWORK SERVICES ROYALTIES. In connection with Unit sales to
Business Affiliates which utilize the CyberCare 24 Network and which result from
Consultant's marketing efforts, Consultant shall be entitled to receive a
percentage of Network Services revenues generated in connection with the use of
such Units by Business Affiliates (not including any taxes, use fees or similar
amounts assessed upon such services and collected by the Company and remitted to
any applicable governmental authority) as follows ("Royalty Fees"):
a. For the first 1,000 Units, EHC, no Royalty Fees shall be
paid;
b. For 1,001 Units to 5,000 Units, Consultant shall be
entitled to receive 5% of Network Services revenues generated in
connection with such Units; and
c. For Units in excess of 5,000, Consultant shall be entitled
to receive 7% of Network Services revenues generated in connection with
such Units.
6. BUSINESS AFFILIATES. The Company shall be solely responsible for
the provision to Business Affiliates of all Units and Network Services, and for
implementation and deployment of the CyberCare System for all such Business
Affiliates desiring to utilize the CyberCare System or any component thereof.
7. EXCLUSIVE AGENT. Unless the Company terminates this Agreement for
"cause" as described below, Consultant shall be entitled to serve as the
Company's exclusive agent for the marketing of The CyberCare System to Business
Affiliates through the term hereof.
8. REGISTRATION OF SHARES. The Company agrees to cause the Parent to
file a registration statement with the Securities and Exchange Commission with
respect to the shares issued in connection with the Marketing Fee within thirty
(30) days following the Effective Date.
D. TERM AND TERMINATION.
1. The initial term of this Agreement shall commence on the
"Effective Date" as designated below and shall expire on the day before the
first (1st) anniversary of the Effective Date (the "Initial Period"); provided,
that this Agreement may be terminated prior to the expiration of the Initial
Period (or any Renewal Period) for "cause" as described below. This Agreement
shall automatically renew for subsequent one year periods (each a "Renewal
Period") at the expiration of the Initial Period and each such subsequent
Renewal Period, unless either party provides the other with written notice of
its intent not to renew this Agreement at least ninety (90) days prior to the
expiration of the then current period. Notwithstanding the foregoing, if, as a
direct result of Consultant's efforts, the Company does not generate any Unit
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sales before the expiration of the Initial Period, this Agreement shall
automatically terminate at the expiration of the Initial Period. Notwithstanding
anything to the contrary, Consultant shall not be entitled to any Commission or
Royalty Fees if this Agreement is terminated pursuant to the preceding sentence
(although Consultant shall be entitled to retain the shares of stock of the
Parent comprising the Marketing Fee, as described in Section C.3 above).
2. Notwithstanding any provision to the contrary, following the
Initial Period, this Agreement may be terminated by either party without "cause"
upon thirty (30) days written notice. Upon the termination of this Agreement by
either party pursuant to the preceding sentence, or upon expiration without
renewal, Consultant shall be entitled to receive Commission and Royalty Fees
that accrue after such termination or expiration for a period of twenty-four
(24) months.
3. This Agreement may be terminated for "cause" at any time by: (a)
either party if the other party (the "Defaulting Party") breaches any material
term of this Agreement and fails to cure such breach within thirty (30) days
following written notice thereof and request that such breach be cured by the
non-Defaulting Party, or (b) the Company, upon a breach by Consultant of the
Confidentiality Agreement entered into in connection with this Agreement.
Notwithstanding any provision to the contrary, if the Company terminates this
Agreement for "cause", Consultant shall forfeit all Commission and Royalty Fees
accruing and otherwise payable from and after such termination. The parties
agree that such forfeiture of Commission and Royalty Fees shall serve as
liquidated damages to which the Company shall be entitled (the actual amount of
damages being difficult to calculate, and such forfeited amounts representing
the estimated losses and damages experienced by the Company as a result of
Consultant's material breach) and shall not be deemed a penalty for such
material breach. Upon termination by Consultant pursuant to this paragraph,
Consultant shall be entitled to Commission and Royalty Fees similar to that
provided in paragraph 2 above.
4. This Agreement may also be terminated by the Company for "cause"
if: (a) Consultant represents or introduces to any Business Affiliates other
services, equipment or products which are similar to The CyberCare System
equipment or products or another company which is engaged in business activities
which are similar to the business activities of the Company (e.g., marketing,
manufacturing, distributing, selling, leasing, providing, or licensing the
CyberCare System equipment or products, or similar activities with respect to
services, equipment or products which are similar to CyberCare System services,
equipment or products); or (b) Consultant makes disparaging remarks, oral or
written, which could reasonably have the result of negatively affecting any
contractual, business, financial or other relationship between the Company and
any Business Affiliates or their third party contractees.
E. MISCELLANEOUS.
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1. Consultant represents that it is not a registered broker-dealer
and will not provide any advice with respect to the purchase or sale of
securities.
2. This Agreement shall be governed and construed in accordance with
the laws of the State of Florida, without regard to conflict of law principles.
3. Nothing in this Agreement is intended nor shall it be construed
to create an employer/employee, agency, partnership or joint venture
relationship.
4. This Agreement constitutes the entire agreement between the
parties, written or oral, with respect to the subject matter hereof, and shall
supersede all prior negotiations, understandings, arrangements and agreements,
oral or written, relating to the subject matter hereof.
5. This Agreement may not be amended, supplemented or modified
except by an instrument signed by the parties. The Company and Consultant,
however, may agree to additional business development and/or consulting tasks,
with compensation to be based on mutual written agreement.
6. This Agreement may not be assigned by the Consultant, but may be
assigned by the Company to any company controlling, in control with or
controlled by the Company, or any entity or person that purchases or acquires
all or substantially all of the assets or equity interest of the Company or such
Affiliate (an "Affiliate"), upon written notice to Consultant.
7. Except for written progress and status reports, which may be
transmitted via e-mail, US Mail or via facsimile, all notices required or
permitted hereunder shall be mailed by certified mail, postage pre-paid, return
receipt requested, or hand delivered by reputable courier or overnight delivery
service, to the respective recipient party's address as set forth in this
Agreement, or to such other address as otherwise designated by such recipient
party.
8. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, neuter, singular or plural as the context may
require.
10. Words used in this Agreement, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
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11. The failure of any party at any time or times to require
performance of any provision of this Agreement will in no manner affect the
right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
12. The parties hereto and their respective legal counsel
participated in the preparation of this Agreement; therefore, this Agreement
shall be construed neither against nor in favor of any of the parties hereto,
but rather in accordance with the fair meaning thereof.
13. The invalidity, illegality or unenforceability of any provision
or provisions of this Agreement will not affect any other provision of this
Agreement, which will remain in full force and effect, nor will the invalidity,
illegality or unenforceability of a portion of any provision of this Agreement
affect the balance of such provision. In the event that any one or more of the
provisions contained in this Agreement or any portion thereof shall for any
reason be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be reformed, construed and enforced as if such invalid, illegal
or unenforceable provision had never been contained herein.
14. Should it become necessary for any party to institute legal
action to enforce the terms and conditions of this Agreement, the successful
party will be awarded reasonable attorneys' fees at all trial and appellate
levels, expenses and costs. Any suit, action or proceeding with respect to this
Agreement shall be brought in the courts of Palm Beach County in the State of
Florida or in the United States District Court for the Southern District of
Florida. The parties hereto hereby accept the exclusive jurisdiction of those
courts for the purpose of any such suit, action or proceeding. Venue for any
such action, in addition to any other venue permitted by statute, will be Palm
Beach County, Florida. The parties hereto hereby irrevocably waive, to the
fullest extent permitted by law, any objection that any of them may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any judgment entered by any court in
respect thereof brought in Palm Beach County, Florida, and hereby further
irrevocably waive any claim that any suit, action or proceeding brought in Palm
Beach County, Florida, has been brought in an inconvenient forum.
15. The parties hereto acknowledge and agree that any party's remedy
at law for a breach or threatened breach of any of the provisions of this
Agreement would be inadequate and such breach or threatened breach shall be per
se deemed as causing irreparable harm to such party. Therefore, in the event of
such breach or threatened breach, the parties hereto agree that, in addition to
any available remedy at law, including but not limited to monetary damages, an
aggrieved party, without posting any bond, shall be entitled to obtain, and the
offending party agrees not to oppose the aggrieved party's request for,
equitable relief in the form of specific enforcement, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy that may
then be available to the aggrieved party.
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16. This Agreement will be binding upon and will inure to the
benefit of any successor or successors and the permitted assigns of the parties
hereto.
17. No person, including any Business Affiliate, shall be deemed to
possess any third-party beneficiary right pursuant to this Agreement. It is the
intent of the parties hereto that no direct benefit to any third party is
intended or implied by the execution of this Agreement.
18. This Agreement may be executed in one or more counterparts, each
of which will be deemed an original and all of which together will constitute
one and the same instrument.
19. The parties agree to take such additional actions and execute
such other documents as may be necessary to effectuate the intent of this
Agreement, including, but not limited to, entering into a subscription agreement
with respect to the issuance of shares of stock representing the Marketing Fee.
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If the terms set forth in this Agreement meet with your approval, please
indicate your acceptance by signing a copy of this letter in the space provided
below and returning such signed copy to the undersigned.
CYBERCARE TECHNOLOGIES, INC.
By: /s/ XXXXXX X. XXXXXX, XX.
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Name: XXXXXX X. XXXXXX, XX.
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Title: SENIOR VICE PRESIDENT
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AGREED TO AND ACCEPTED this 25th day of September, 2001 (the "Effective
Date").
CONSULTANT:
SYZEX CORPORATION
By: /s/ XXXXXXX X. XXXXXXXX
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Name: XXXXXXX M,.XXXXXXXX
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Title: PRESIDENT
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