Exhibit 10.4
[CYBERCARE LOGO]
Direct Dial: (000) 000-0000
Direct Fax: (000) 000-0000
October 12, 2001
Via Facsimile 000-000-0000
And U.S. Mail
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Managing Director
RE: CARDIOCOMMAND AGREEMENT FOR PURCHASE AND SALE, AS AMENDED
Dear Xx. Xxxxxxx:
Reference is made to that certain Agreement for Purchase and Sale, entered
into February 28, 2001 (the "Agreement"), and amended by that certain First
Amendment to Agreement of Purchase and Sale (the "First Amendment" and,
collectively with the Agreement, the "Amended Agreement"), by and between
CardioCommand, Inc., a Delaware corporation ("Seller"), CyberCare Technologies,
Inc., a Georgia corporation ("Buyer"), and CyberCare, Inc., a Florida
corporation (formerly known as Cyber-Care, Inc.) ("Cyber", and collectively with
Xxxxx, "CyberCare"), and that certain Settlement Agreement between Buyer, Cyber,
Seller and Xxxxxxx Xxxxxx XXX, a shareholder of Seller, dated October 12, 2001
("Settlement Agreement"). This letter ("Letter") is intended to set forth the
terms by which CyberCare and Xxxxxxx Xxxxx & Associates, Inc. (the "Broker"),
broker to Cardio Command, Inc., agree to settle all claims that could be brought
by either of them against the other in connection with any broker fee or
commission to which the Broker may be entitled pursuant to Section 4.13 of the
Amended Agreement or otherwise and the failure of the Parties to consummate the
transaction contemplated in the Amended Agreement (the "Transaction").
In return for the Broker's agreement to waive and release CyberCare from
all requirements of performance, if any, and any and all obligations under or in
connection with the Amended Agreement and the Transaction with respect to
payment of any commission or broker fees to the Broker, as set forth in more
detail below, and without admitting any liability of any kind, CyberCare shall
waive and release the Broker from all Claims (as defined below), and provide the
Broker with 25,000 shares of Cyber common stock, in restricted form ("Settlement
Shares"); provided that, Cyber agrees it shall include the Settlement Shares in
the next registration statement (exclusive of a registration in Form S-4 or S-8
or other inappropriate form), without cost to the Broker (exclusive of any
brokerage, underwriting or transfer fees and costs).
XXX.XXXXX-XXXX.XXX
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000; 000-000-0000;
Fax 000-000-0000
Xxxxxxx Xxxxx & Associates, Inc.
October 12, 2001
Page 2 of 3
In consideration for the mutual settlement of any disputes in connection
with the Amended Agreement and the Transaction, the payment of the Settlement
Shares to the Broker and the other mutual covenants contained herein, the
parties provide the following releases to each other:
RELEASE BY BROKER. Xxxxxx, for itself and its 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,
does hereby forever remise, release, satisfy, and forever discharge
CyberCare and its 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 all requirements of performance, if any, and any
and all obligations which ever existed or which may come into existence
under or in connection with the Amended Agreement and/or the Transaction
and with respect to payment of any commission or broker fees to the
Broker, and all other obligations, liabilities, costs, damages and claims
whether arising under the Amended Agreement or otherwise, except that the
foregoing release shall NOT apply to (1) any Claims asserted by third
parties or (2) the obligations and duties of Broker set forth in this
Agreement.
RELEASE BY CYBERCARE. CyberCare, for itself and its 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,
does hereby forever remise, release, satisfy, and forever discharge Broker
and its 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 Claims, upon or by reason of any matter, cause or
thing whatsoever, relating to, arising out of or in connection with all
requirements of performance, if any, and any and all obligations which
ever existed or which may come into existence under or in connection with
the Amended Agreement and/or the Transaction and with respect to payment
of any commission or broker fees to the Broker, and all other obligations,
liabilities, costs, damages and claims whether arising under the Amended
Agreement or otherwise, except that the foregoing release shall NOT apply
to (1) any Claims asserted by third parties or (2) the obligations and
duties of CyberCare set forth in this Agreement.
XXX.XXXXX-XXXX.XXX
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000; 000-000-0000;
Fax 000-000-0000
Xxxxxxx Xxxxx & Associates, Inc.
October 12, 2001
Page 2 of 3
The parties expressly understand and agree that this Letter is given in
full accord and satisfaction of the any and all disputed claims under the
Amended Agreement and the Transaction or that could have been made in connection
with any disputes or under the Amended Agreement and the Transaction and that
the terms of this Letter are not to be construed in any way as an admission of
liability on the part of any of the parties.
Please signify your acknowledgement and agreement with the foregoing by
executing a copy of this Letter in the space provided on the next page and
returning it to my attention.
If you have any questions, do not hesitate to contact Xxxxxx Xxxxxx or
me.
Sincerely,
CyberCare, Inc.
CyberCare Technologies, Inc.
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Xxxxxx X. Xxxxxxx, Esq.
Senior Vice President and General Counsel
CyberCare, Inc. and
Secretary, CyberCare Technologies, Inc.
cc: Xxxxxx X. Xxxxxx, Xx.
Xxxxxxx Xxxxxxxxx
Xxxxxx XxXxxxxx (via facsimile)
ACKNOWLEDGED AND AGREED
THIS 16TH DAY OF OCTOBER, 2001:
XXXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Name: XXXXX X. XXXXXXX
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Its: MANAGING DIRECTOR
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XXX.XXXXX-XXXX.XXX
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000; 000-000-0000;
Fax 000-000-0000
