EXHIBIT 23.9
[XXXXXXXXX, XXXXXXX, XXXXX & XXXXXXXX, P.A. LETTERHEAD]
March 30, 2000
VIA FEDERAL EXPRESS
Xxx Xxxxxx, Esquire
Cyber-Care, Inc.
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Re: Cyber-Care, Inc. v. Xxxxxxx, Xxxxxx
Dear Xxx:
I have now received the original General Releases executed by Xxx and Xxxxx
Xxxxxxx. I have those in my file. I have also received the Settlement Agreement
executed by Xxx and Xxxxx Xxxxxxx before a Notary Public. I am transmitting to
you the original Settlement Agreement which requires Cyber-Care's signature on
page 11 through an authorized officer. Two witnesses should sign in the witness
column on page 11- In addition, a notary needs to execute the notarization form
on page 12 of the Settlement Agreement.
Kindly arrange to have the Settlement Agreement executed and returned to me in
order that I can conclude this matter. The lawyer for the Riewolds is calling
almost every day for receipt of the documents and finalization of this matter.
I would appreciate receiving the executed Settlement Agreement back as quickly
as possible. Please call me if you have an, questions regarding this matter.
Sincerely
/s/XXXXXXX X. XXXXXXXXX
XXXXXXX X. XXXXXXXXX
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("AGREEMENT") is entered into and effective as
of this 20th day of March, 2000, by and between CYBER-CARE, INC., a Florida
corporation (hereafter "CYBER-CARE"); XXXXXX XXXXXXX (hereafter "XXXXXXX"); and
XXXXX XXXXXXX (hereafter "XXXXX XXXXXXX").
R E C I T A L S
WHEREAS, CYBER-CARE is a Florida corporation authorized to do business in
Florida with its principal place of business in Palm Beach County, Florida; and
WHEREAS, CYBER-CARE was formerly known as Medical Industries of America
(hereafter "MIOA"); and
WHEREAS, XXXX and XXXXXXX entered into an Employment Agreement (hereafter
the "Employment Agreement") dated July 1, 1997 pursuant to which XXXX employed
XXXXXXX to serve as a Senior Vice President; and
WHEREAS, on a date after or about July 9, 1999, XXXXXXX'x employment with
CYBER-CARE ceased; and
WHEREAS, certain disputes have arisen between XXXXXXX on the one hand and
CYBER-CARE on the other hand regarding their respective rights and obligations
under the Agreement; and
WHEREAS, XXXXXXX instituted the litigation against CYBER-CARE encaptioned
XXXXXX XXXXXXX X. CYBER-CARE, INC., Case No. 00-00593 (AB), in the Circuit Court
of the 15th Judicial Circuit, in and for Palm Beach County, Florida (hereafter
the "Litigation"); and
WHEREAS, the parties hereto desire to settle and resolve their differences
conditioned upon full performance with the terms and conditions of this
AGREEMENT; and
WHEREAS, each of the signatory parties have received independent legal
and/or accounting advice as to the nature and obligations of this AGREEMENT, and
each have been fully informed of his or her respective legal rights, obligations
and liabilities as set forth herein; and
WHEREAS, each of the parties, believing this AGREEMENT to be fair, just
and reasonable, has assented freely and voluntarily to its terms.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and in consideration of the obligations and duties assumed by
each party, as well as other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually covenanted and
agreed as follows:
ARTICLE I - INCORPORATION
The foregoing recitals are true and correct, and are incorporated herein
by reference.
ARTICLE II - CONSIDERATION
The consideration for this AGREEMENT is the mutual benefits each accruing
to the other party that presently exist, or are to be obtained by the parties,
and the promises of each to the other. The adequacy of the consideration for
this Agreement is hereby admitted by all parties hereto.
ARTICLE III - CONFIDENTIALITY AND NON-DISPARAGEMENT
Except as expressly set forth herein, or as may be required by any
applicable federal, state or local securities or healthcare regulations or
statutes, including any exchange rules or regulations, the parties hereby agree
that any and
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all matters embodied by or encompassed within this AGREEMENT are to be kept
strictly confidential, and are to be governed by the following terms and
conditions which are a material and integral part of this AGREEMENT:
A. All parties hereto agree, covenant and represent that they will
not discuss or disclose their respective claims against each other, the terms
and conditions of this AGREEMENT, or any facts pertaining to either of the same,
whether disputed or not, any oral or written information obtained by them,
and/or the contents of any settlement negotiations, the facts of this
settlement, and/or any payment with or to any person or entity hereunder, and
further agree that they shall not, directly or indirectly, either on their own
or through other persons or entities, orally, in writing, or in any form,
disclose, disparage or make comment about their respective claims or this
AGREEMENT, or the conduct or lack of conduct of any party hereto, to or with any
third person, firm, entity, organization, corporation, government entity, media,
or any regulatory, administrative, or review body, whether private, public,
professional, local, county, state, or federal, or any other entity unless
otherwise provided herein or unless required by lawful process of any court or
governmental entity;
B. All parties hereto agree, covenant and represent that they will
not discuss or disclose any evidence or information obtained regarding their
respective claims, including but not limited to any oral or written information
obtained by them, with or to any persons or entities and further agree that they
shall not, directly or indirectly, either on their own or through other persons
or entities, orally, in writing, or in any form, testify, participate, cooperate
or assist the claims of any other persons or entities who have or may have a
claim, action or
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lawsuit against any other party hereto, unless otherwise provided, or unless
required by lawful process of any court or governmental entity;
C. All parties hereto agree, covenant, and represent that they will
not consent to be interviewed by the media, nor will they comment in any manner
to the media or others, other than to state that the matter has been amicably
settled. In particular, they will not indicate any measure of satisfaction or
dissatisfaction with the settlement, regardless of the form of the media
communication, regarding the parties' respective claims or regarding the terms
and conditions of this AGREEMENT, any payments given in consideration for this
AGREEMENT, the information protected by this AGREEMENT and/or the existence of
this AGREEMENT, unless otherwise provided or unless required by lawful process
of any court or governmental entity;
D. The parties hereto, agree, covenant and represent that they shall
not disclose, disseminate or reveal, in any way whatsoever, the original or any
copy of any portion of this AGREEMENT, nor any prior memoranda signed by the
parties hereto, nor any other written communication between counsel or anyone
else concerning the parties' respective claims or disagreement, nor any portion
of the AGREEMENT, directly or indirectly, to any person, firm, corporation or
governmental entity, the media, any regulatory, administrative or review body,
whether private, professional, local, county, state, or federal, or other
entity, unless otherwise provided herein or unless required by lawful process of
any court or governmental entity.
E. Disclosure of all matters embodied or encompassed within this
AGREEMENT shall be permitted to attorneys, accountants or other professional
advisors acting in such capacity on behalf of any party hereto.
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ARTICLE IV - RELEASE BY XXXXXXX TO CYBER-CARE
Contemporaneous with the execution of this AGREEMENT, XXXXXXX agrees to
execute the General Release unto CYBER-CARE, attached hereto and incorporate
herein as Exhibit "A". This executed General Release shall be delivered to
Xxxxxxx X. Xxxxxxxxx, Esq., Xxxxxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxx, P.A., as
counsel for CYBER-CARE.
ARTICLE V - RELEASE BY CYBER-CARE TO XXXXXXX
Contemporaneous with the execution of this AGREEMENT, CYBER-CARE agrees to
execute the General Release unto XXXXXXX, attached hereto and incorporated
herein as Exhibit "B". This executed General Release shall be delivered to Xxx
X. Xxxxxxxxx, Esq., Xxxxxxxxx & Xxxxxxxx, P.A., as counsel for XXXXXXX.
ARTICLE VI- RELEASE BY XXXXX XXXXXXX TO CYBER-CARE
In exchange for the assignment provided by Article VIII INFRA and
contemporaneous with the execution of this AGREEMENT, XXXXX XXXXXXX agrees to
execute the General Release unto CYBER-CARE, attached hereto and incorporate
herein as Exhibit "C". This executed General Release shall be delivered to
Xxxxxxx X. Xxxxxxxxx, Esq., Xxxxxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxx, P.A., as
counsel for CYBER-CARE.
ARTICLE VII - RIEWOLD STOCK PURCHASE
CYBER-CARE hereby agrees to issue or instruct its transfer agent to issue
137,500 unregistered shares of CYBER-CARE common stock to XXXXXX XXXXXXX upon
the presentation by XXXXXXX of a cashier's check for
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$203,500.00, representing $1.48 per share. CYBER-CARE hereby agrees to amend its
current S-3 filing to include the registration of these shares of stock.
CYBER-CARE hereby agrees to use reasonable and best efforts to accomplish the
filing and approval of the S-3 filing. CYBER-CARE makes no representation,
warranty or guarantee of the date of accomplishing the amended S-3 filing, but
believes that it can be accomplished prior to April 15, 2000.
ARTICLE VIII - RIEWOLD STOCK ASSIGNMENT
CYBER-CARE hereby agrees to permit XXXXXXX to assign 50,000 shares of the
137,500 shares of CYBER-CARE unregistered common stock referenced in Article VI,
to his former wife XXXXX XXXXXXX. This assignment shall occur contemporaneous
with the execution of this AGREEMENT by all parties hereto.
ARTICLE IX - FINAL ORDER OF DISMISSAL
Counsel for the parties hereto shall file with the Court a Stipulation and
Order in the form attached hereto as Exhibit "D", providing for a dismissal of
the Litigation with prejudice.
ARTICLE X - TERMINATION OF PRIOR AGREEMENTS
The Employment Agreement dated June 1, 1997 by and between XXXXXX XXXXXXX
and XXXX is hereby terminated and of no further force or effect.
The Stock Option Agreement dated July 1, 1998 by and between XXXXXX
XXXXXXX and XXXX is hereby terminated and of no further force or effect.
ARTICLE XI - NON-INTERFERENCE AND NON-DISPARAGEMENT
From this moment forward, XXXXXXX agrees that he will not, directly or
indirectly, or through his agents or attorneys, take any action to defeat,
impair,
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impede or otherwise interfere with CYBER-CARE's business and/or reputation, and
will take no action whatsoever to adversely affect the same.
ARTICLE XII - MISCELLANEOUS
1. CLOSING. The execution of this AGREEMENT and all exhibits by all
parties hereto and the payment of all monies must ALL occur no later than March
28, 2000.
2. TAXES. The parties hereto shall each be responsible for the payment of
their own respective tax obligations created as a result of the terms and
conditions of this AGREEMENT, or performance hereunder.
3. GOVERNING LAW. This AGREEMENT has been entered into in the State of
Florida, and it is the intention of the parties that all questions as to
performance, interpretation, validity, legal effect and enforceability of this
AGREEMENT, shall be determined in accordance with the laws of the State of
Florida. The parties hereby further agree that the exclusive venue for any
action under this AGREEMENT shall be the courts of Palm Beach County, Florida,
state and federal, and all parties hereby waive any objections which they may
have to the personal jurisdiction of such courts. Such personal jurisdiction is
hereby conferred without regard to the actual locus or residence of the parties
at the present time, or regardless of any change of residence of any of the
parties that may occur hereafter.
4. ENTIRE AGREEMENT. This AGREEMENT sets forth the entire understanding of
the parties hereto, and supersedes all previous oral and written agreements, if
any, between the parties, and may not be amended, altered or modified except by
written document signed by all of the parties hereto.
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5. HEADINGS. The headings used in this AGREEMENT are used for reference
purposes only, and are not deemed controlling with respect to the meaning,
construction or effect of the contents thereof.
6. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this AGREEMENT shall not affect the other provisions hereof, and
this AGREEMENT shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
7. BINDING EFFECT. This AGREEMENT shall be binding upon and inure to the
benefit of, and shall be enforceable by, the respective successors, assigns,
heirs, beneficiaries and personal representatives of the parties hereto.
8. GENDER. Wherever the context shall so require, all words herein any
gender shall be deemed to include the masculine, feminine or neuter gender; all
singular words shall include the plural and all plural shall include the
singular.
9. WAIVER OF BREACH. The waiver of any party of a breach of any provision
of this AGREEMENT by the other shall not operate or be construed as a waiver of
any subsequent breach.
10. ATTORNEYS' FEES AND COSTS. In the event that any party shall be
required to enforce this AGREEMENT through litigation, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and all costs and
expenses incurred in connection with such enforcement, including fees, costs and
expenses incurred upon any appeal or in any bankruptcy proceedings.
11. COUNTERPARTS. This AGREEMENT may be executed in any number of
counterparts, and each such counterpart shall for all purposes be deemed to be
an original.
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12. FURTHER COOPERATION. Each of the parties hereto agrees to execute
whatever additional documentation or instruments as are necessary to carry out
the intents and purposes of this AGREEMENT.
13. JOINT AGREEMENT. This AGREEMENT shall be considered the joint product
of all parties hereto, and in the event of any controversy as to the
construction of any provision hereof, such controversy shall not be construed
against any party as the alleged drafter of this AGREEMENT.
14. NOTICE. Any and all notices, consents, offers, acceptances, or any
other communications provided for herein shall be given in writing and shall be
effective upon delivery as evidenced by a receipt executed by or for the party
to whom such notice, consent, offer, acceptance, or any other communication
provided for herein is addressed; which delivery shall occur upon facsimile
transmission, as evidenced by such facsimile transmission verification report OR
upon delivery by (i) certified or registered mail as evidenced by a return
receipt executed by or for the party to whom such mail is addressed, or (ii)
courier service, including, without limitation, United Parcel Service, Federal
Express, Purolator, Airborne Express, or U.S. Postal Service Express Mail, as
evidenced by a receipt executed by or for the party to whom such courier package
is addressed. Notices shall be given to the following:
If to CYBER-CARE, INC..: Xxx Xxxxxx, Esquire
Cyber-Care, Inc.
1903 So. Congress Avenue, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxxxxxxx, Xxxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxx &
Xxxxxxxx, P.A.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
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Fort Lauderdale, FL 33334
(000) 000-0000
(000) 000-0000 (FAX)
If to XXXXXX XXXXXXX Xxxxxx Xxxxxxx
0000 Xx Xxxxx Xx., Xxx. M
Boca Raton, FL 33433
With a copy to: Xxx X. Xxxxxxxxx, Esquire
Xxxxxxxxx & Xxxxxxxx, P.A.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (FAX)
If to XXXXX XXXXXXX Xxxxx Xxxxxxx
0000 Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to: Xxx X. Xxxxxxxxx, Esquire
Xxxxxxxxx & Xxxxxxxx, P.A.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (FAX)
The parties shall provide notice, in writing, of any changes to the aforesaid
notice addresses.
15. TIME. Time shall be of the essence in the performance of any
obligation or the sending of any notice under this AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, with
the intent to be legally bound, on the day and year written below:
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WITNESSES:
CYBER-CARE, INC., a Florida
corporation
/s/ SIGNATURE ILLEGIBLE BY:/s/ XXXXXX X. XXXXXX, XX.
/s/ SIGNATURE ILLEGIBLE Sr. Vice President and General Counsel
(Print name and title)
/s/ SIGNATURE ILLEGIBLE BY:/s/ XXXXXX XXXXXXX
XXXXXX XXXXXXX
_________________________
/s/ SIGNATURE ILLEGIBLE BY:/s/ XXXXX XXXXXXX
XXXXX XXXXXXX
_________________________
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STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 31st day of
March, 2000, by Xxxxxx X. Xxxxxx, Xx., Sr. Vice President and General Counsel of
CYBER-CARE, INC., who [X] is personally known to me, or [ ] produced as
______________________________ identification.
[NOTARY SEAL]
/s/ SIGNATURE ILLEGIBLE
NOTARY PUBLIC
My Commission Expires: Print Name: Xxxxxx Xxxxxxx
Commission No.:
[NOTARY SEAL]
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 20th day of
March, 2000, by XXXXXX XXXXXXX, who [X] is personally known to me, or [ ]
produced ___________________________________________________ as identification.
/s/ SIGNATURE ILLEGIBLE
NOTARY PUBLIC
My Commission Expires: Print Name: Xxx X. Xxxxxxxxx
Commission No.:
[NOTARY SEAL]
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STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 20th day of
March, 2000, by XXXXX XXXXXXX, who [X] is personally known to me, or [ ]
produced ___________________________________________________ as identification.
/s/ SIGNATURE ILLEGIBLE
NOTARY PUBLIC
My Commission Expires: Print Name: Xxx X. Xxxxxxxxx
Commission No.:
[NOTARY SEAL]
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