Exhibit 10.3
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this "Agreement") is made and entered into as
of the 13th day of November, 2001 (the "Effective Date"), by and among CyberCare
Technologies, Inc., a Georgia corporation ("CyberCare Technologies"), CyberCare,
Inc., f/k/a Cyber-Care, Inc., a Florida corporation ("CyberCare" and
collectively with CyberCare Technologies, the "CyberCare Parties"),
CardioCommand, Inc., a Florida corporation ("CardioCommand"), and Xxxxxxx Xxxxxx
III, a shareholder of CardioCommand, ("Xxxxxx" and collectively with
CardioCommand, the "CardioCommand Parties").
RECITALS:
WHEREAS, the CyberCare Parties and CardioCommand entered into an Agreement
of Purchase and Sale dated February 28, 2001 (the "Original Agreement"), which
was amended by that certain First Amendment to Agreement of Purchase and Sale
dated April 5, 2001 (the "First Amendment" together with the "Original
Agreement", the "Purchase Agreement");
WHEREAS, Xxxxxx was intended to be a signatory to the Purchase Agreement,
but was inadvertently omitted as a signatory;
WHEREAS, the parties hereto desire to completely extinguish all of their
rights and obligations under the Purchase Agreement and make a full and final
resolution of any and all claims, disputed or otherwise, in connection with the
Purchase Agreement in exchange for agreements contained herein; and
WHEREAS, without admitting any liability of any kind, and in order to
mitigate any costs or other alleged damages which may arise in connection with
the termination of the Purchase Agreement, parties are willing to enter into
this Agreement.
NOW THEREFORE, in consideration of the mutual promises herein contained,
and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
TERMS:
1. RECITALS. The foregoing recitals are true and correct and, with any
attachments hereto, are incorporated by reference.
2. TERMINATION OF PURCHASE AGREEMENT. The parties hereto agree that
simultaneously with the execution of this Agreement and the delivery of the
Consideration (as defined herein) and subject to the requirement that CyberCare
and CardioCommand consummate the License Agreement (as defined herein) in
accordance with Section 4 hereof, they are completely and forever terminating
the Purchase Agreement and any and all rights and obligations contained in the
Purchase Agreement.
3. CONSIDERATION. The CyberCare Parties shall make payment to the
CardioCommand Parties as follows:
(a) Simultaneously with the execution hereof, the sum of One Hundred
Twenty Five Thousand Dollars ($125,000) ("Cash") by bank check or by
wire transfer in immediately available funds; and
(b) One Hundred Twenty Five Thousand (125,000) shares of CyberCare's
restricted voting common stock ("Settlement Shares" together with
the Cash, the "Consideration"). The Settlement Shares shall be
included in the next registration statement that CyberCare files
with the Securities and Exchange Commission. Simultaneously with the
execution hereof, the certificate for the Settlement Shares shall be
delivered to counsel for CardioCommand.
4. LICENSE. Within 45 days following the Effective Date, CyberCare and
CardioCommand shall enter into a License Agreement in which CyberCare shall
license to CardioCommand certain rights to its CyberCare System(TM) on
commercially reasonable terms ("License Agreement"). The License Agreement shall
provide substantially as follows:
(a) CyberCare shall grant a non-exclusive license (the "Software
License"), which may not be assigned by CardioCommand without
CyberCare's consent, which shall not be unreasonably withheld,
entitling CardioCommand to utilize CyberCare's Electronic HouseCall
Software version 1.2, or the then-current version of Electronic
HouseCall(R)Software ("Software") for use with CardioCommand's
CloseTouch Companion home workstation ("CTC Units") and
CardioCommand's caregiver terminals ("Caregiver Units" and
collectively with CTC Units, "Units"):
i. With respect to Units utilizing the Software that are
connected to CyberCare's virtual private network (the
"CyberCare 24 Network(TM)"), for each Unit connected to
the CyberCare 24 Network(TM), CyberCare shall be
entitled to receive from CardioCommand 85% of its normal
published network fee and CardioCommand shall be
entitled to receive 15% of CyberCare's normal published
network fee collected.
ii. With respect to Units utilizing the Software that are
not connected to the CyberCare 24 Network(TM), for each
such CTC Unit, CardioCommand shall pay to CyberCare a
one time Software License fee of $100 and for each such
Caregiver Unit utilizing the Software, CardioCommand
shall pay to CyberCare a one time Software License fee
of $1,000.
(b) CardioCommand acknowledges and agrees that CyberCare makes no
representations that the Software will function with the CTC Units
and may require substantial programming modifications to function
with the CTC Units, which modifications shall be made by CyberCare,
subject to CyberCare's available resources, at CardioCommand's sole
expense, at industry software development
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consulting rates. The Software License shall include, without
additional cost, such training as is made available by CyberCare to
its own personnel or other personnel contracting for the use of the
Software. The training shall include procedures for installation,
configuration, and non-programming customization of the Software.
(c) CardioCommand shall appoint and license CyberCare as CardioCommand's
non-exclusive worldwide reseller of the Units, including, without
limitation, the right to market, sell, lease, install, service,
maintain and support the Units. The prices applicable to the Units
to be purchased by CyberCare shall be 85% of CardioCommand's normal
published rates for the Units.
5. MUTUAL RELEASE. In consideration for the mutual settlement of any
disputes in connection with the Purchase Agreement, the payment of the
Consideration to the CardioCommand Parties, entering into the License Agreement
and the other mutual covenants contained herein, the parties provide the
following releases to each other:
(A) RELEASE BY CYBERCARE PARTIES. The CyberCare Parties, jointly and
severally, for themselves and their respective heirs, executors, administrators,
predecessors, successors, assignors, assignees, insurers, transferors,
transferees, attorneys, joint venturers, partners, corporations, affiliates,
parent companies, subsidiaries, divisions, officers, directors, shareholders,
employees, agents, and representatives, do hereby forever remise, release,
satisfy, and forever discharge the CardioCommand Parties and their heirs,
executors, administrators, predecessors, successors, assignors, assignees,
transferors, transferees, attorneys, joint venturers, partners, corporations,
affiliates, parent companies, subsidiaries, divisions, officers, directors,
shareholders, employees, and agents, from any and all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, liens, damages, judgments, indebtednesses, damages,
losses, claims, attorney fees, liabilities and demands of any nature and kind
whatsoever, in law or equity, known or unknown (collectively "Claims"), upon or
by reason of any matter, cause or thing whatsoever, relating to, arising out of
or in connection with the Purchase Agreement or any disputes in connection
therewith and any claim made or that could have been made in any litigation,
claim, cause of action, arbitration or other proceeding having the Purchase
Agreement or any disputes in connection therewith as its basis, except that the
foregoing release shall NOT apply to (1) any Claims asserted by third parties or
(2) the obligations and duties of the CardioCommand Parties set forth in this
Agreement or the License Agreement.
(B) RELEASE BY CARDIOCOMMAND PARTIES. The CardioCommand Parties,
jointly and severally, for themselves and their respective heirs, executors,
administrators, predecessors, successors, assignors, assignees, insurers,
transferors, transferees, attorneys, joint venturers, partners, corporations,
affiliates, parent companies, subsidiaries, divisions, officers, directors,
shareholders, employees, agents, and representatives, do hereby forever remise,
release, satisfy, and forever discharge the CyberCare Parties and their heirs,
executors, administrators, predecessors, successors, assignors, assignees,
transferors, transferees, attorneys, joint venturers, partners, corporations,
affiliates, parent companies, subsidiaries, divisions, officers, directors,
shareholders, employees, and agents, from any and all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, liens, damages,
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judgments, indebtednesses, damages, losses, claims, attorney fees, liabilities
and demands of any nature and kind whatsoever, in law or equity, known or
unknown (collectively "Claims"), upon or by reason of any matter, cause or thing
whatsoever, relating to, arising out of or in connection with the Purchase
Agreement or any disputes in connection therewith and any claim made or that
could have been made in any litigation, claim, cause of action, arbitration or
other proceeding having the Purchase Agreement or any disputes in connection
therewith as its basis, except that the foregoing release shall NOT apply to (1)
any Claims asserted by third parties or (2) the obligations and duties of the
CyberCare Parties set forth in this Agreement or the License Agreement.
6. FAIR AND ADEQUATE CONSIDERATION. Each of the parties hereto
acknowledges that the consideration given or received in this Agreement is fair
and adequate consideration for the covenants, undertakings and forbearances
herein made.
7. COUNTERPARTS. This Agreement may be executed in multiple, original
counterparts, each of which counterparts constitute and serve as an original
hereof, and together constitute one and the same instrument.
8. ADVICE. Each party represents and warrants that he, she or it has
executed this Agreement based upon his, her or its own knowledge and that each
is entitled to the advice of his, her or its respective legal counsel,
professionals, consultants and experts of their own choosing.
9. AUTHORITY. Each party, by their signatures, warrants and represents
that they have the authority to so execute and bind themselves and the parties
for whom they are acting to the terms and provisions of this Agreement.
10. REMEDIES. In the event any party to this Agreement breaches any terms
hereof, the non-breaching party shall be entitled to damages against the
breaching party. Notwithstanding anything to the contrary, the non-breaching
party may also seek injunctive relief in an appropriate case. Such action
seeking injunctive relief may be filed in a court of competent jurisdiction and
shall be determined in a court of law, and not in arbitration.
11. ATTORNEY FEES AND COSTS. The parties agree that if any party brings an
action or arbitration to enforce this Agreement or any of its terms or
conditions, the prevailing party in such action or arbitration shall be entitled
to receive from the non-prevailing party all costs, fees and expenses incurred
in connection with such action or arbitration, including reasonable attorneys'
fees, at all pre-trial, trial, and appellate levels and in connection with all
such arbitration proceedings.
12. NO ASSIGNMENT. Each party represents that it has made no assignment of
any claims herein released and hereby agrees to indemnify and hold all other
parties harmless in the event of any such assignment, whether real or purported.
13. NO ADMISSION OF LIABILITY. The parties expressly understand and agree
that this Agreement is given in full accord and satisfaction of any and all
disputed claims under the
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Purchase Agreement or that could have been made in connection with any disputes
or under the Purchase Agreement and that the terms of this Agreement are not to
be construed in any way as an admission of liability on the part of any of the
parties.
14. BINDING UPON HEIRS. This Agreement shall be binding upon each of the
parties and their respective heirs, administrators, representatives, executors,
predecessors, successors and assigns.
15. MERGER. This Agreement sets forth the entire Agreement of the parties
and fully supersedes any and all prior negotiations, agreements or
understandings between the parties hereto pertaining to any disputes that arise
in connection with the Purchase Agreement. This Agreement may not be modified or
amended, except by a written agreement signed by all the parties hereto.
16. NONDISCLOSURE. The parties agree to refrain from disclosing the terms
of this Agreement to any third party whatsoever, except as may be required in
connection with the filing of any tax return, securities filing or similar
document necessary to be filed with any governmental authority, the financial
accounting of the CyberCare Parties or its affiliates or any securities filing
required to be filed by the CyberCare Parties. Notwithstanding anything to the
contrary, any party shall be able to make such disclosure as is required
pursuant to a lawfully executed subpoena or court order; however, prior to
making any such disclosure, the party that is the subject of the subpoena or
court order shall provide notice to the other parties' counsel advising them of
the subpoena and/or court order so that the opposing party may interpose an
objection or other action in the proceedings, if appropriate.
17. FURTHER ASSURANCES. The parties agree to execute such other and
further documents and to otherwise cooperate with the reasonable requests of the
other party or their counsel to effectuate the intent of this Agreement.
18. CHOICE OF LAW. This Agreement shall be interpreted, enforced and
governed under the laws of the State of Florida, without regard to conflict of
laws principles.
19. NO WAIVER. 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.
20. SEVERABILITY. 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.
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IN WITNESS THEREOF, this Settlement Agreement is executed as of the date
first above written.
CYBERCARE TECHNOLOGIES, INC.
By: /s/ XXXXXX XXXXXXX
---------------------------------
Name: XXXXXX XXXXXXX
------------------------------------
Its: GENERAL COUNSEL AND SECRETARY
-------------------------------------
STATE OF FLORIDA )
) ss.
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 13th day of
November, 2001 by Xxxxxx Xxxxxxx, the Secretary of CyberCare Technologies, Inc.,
WHO IS KNOWN TO ME or produced _________________ as identification.
WITNESS my hand and official seal.
My commission expires: JULY 4, 2005 /s/ XXXXX XXXXX
------------- ------------------------------
Notary Public
CYBERCARE, INC.
By: /s/ XXXXXX XXXXXXX
---------------------------------
Name: XXXXXX XXXXXXX
------------------------------
Its: SR. VP AND GENERAL COUNSEL
-------------------------------
STATE OF FLORIDA )
) ss.
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 13th day
of November, 2001 by Xxxxxx Xxxxxxx, the Sr. Vice President of CyberCare,
Inc., WHO IS KNOWN TO ME or produced _________________ as identification.
WITNESS my hand and official seal.
My commission expires: JULY 4, 2005 /s/ XXXXX XXXXX
------------- ------------------------------
Notary Public
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CARDIOCOMMAND, INC.
By: /s/ XXXXXXX XXXXXX, III
-----------------------------------
Name: XXXXXXX XXXXXX, III
--------------------------------
Its: PRESIDENT
---------------------------------
STATE OF FLORIDA )
) ss.
COUNTY OF Hillsborough )
The foregoing instrument was acknowledged before me this 13th day of
November, 2001 by Xxxxxxx Xxxxxx, III, the President of CardioCommand, Inc., who
is known to me or produced _________________ as identification.
WITNESS my hand and official seal.
My commission expires: NOVEMBER 3, 2005 /s/ XXXXXX X XXXXXXXX
--------------------- ---------------------
Notary Public
/s/ XXXXXXX XXXXXX, III
-------------------------------
XXXXXXX XXXXXX, III
STATE OF Florida )
) ss.
COUNTY OF Hillsborough )
The foregoing instrument was acknowledged before me this 13th day of
November, 2001 by Xxxxxxx Xxxxxx, III who is known to me or produced
_________________ as identification.
WITNESS my hand and official seal.
My commission expires: NOVEMBER 3, 2005 /s/ XXXXXX X XXXXXXXX
-------------------- -----------------------
Notary Public
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