EXHIBIT 23.7
AGREEMENT AND GENERAL RELEASE
This AGREEMENT AND GENERAL RELEASE (hereinafter referred to as "RELEASE"),
is entered into this 28th day of October, 1999, by and between CYBER-CARE, INC.
f/k/a MEDIAL INDUSTRIES OF AMERICA, INC., (hereinafter referred to as "CYBER")
and XXXXXX X. XXXXX. JR. (hereinafter referred to as "XXXXX").
WITNESSETH:
WHEREAS, Xxxxx and Cyber entered into that certain Consulting Agreement
dated March 31,1998 (hereinafter referred to as "CONSULTING AGREEMENT"), whereby
Xxxxx was to perform certain services for Cyber in exchange for certain fees;.
WHEREAS. the parties are in disagreement with respect to certain
performance related issues and as a result, certain disputes have arisen; and
WHEREAS, the parties to this Release desire to amicably terminate the
Consulting Agreement and settle all matters between them all on the following
terms and conditions; and
NOW, THEREFORE, in consideration of the promises and undertakings
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is acknowledged, Cyber and Xxxxx agree as follows:
1. GENERAL RELEASE: Except for the enforcement of the terms of this
Release, Cyber hereby releases, acquits and forever discharges Xxxxx and his
employees, agents, officers, directors, representatives, assigns, heirs and any
and all other persons, firms and corporations, whether herein named or referred
to or not, of and from any and all past, present and future actions, causes of
action. claims, demands, damages, costs, loss of service, expenses,
compensation, third-party actions, suits at law or in equity, including claims
or suits for contribution and/or indemnity, of whatever nature, and all
consequential damage on account of, or in any way growing out of, as a
consequence of, by reason of, or relating in any way to all circumstances,
events occurrences, actions and omissions relating to any and all matters
whatsoever. Likewise, except for the enforcement of the terms of this Release,
Xxxxx hereby releases, acquits and forever discharges Cyber and its
subsidiaries, affiliated companies, employees, officers, directors, agents,
representatives, assigns, successors and any and all other persons, firms and
corporations, whether herein named or referred to nor not, of and from any and
all past, present and future actions, causes of action, claims, demands,
damages, costs, loss of services, expenses, compensation, third-party actions.
suits at law or in equity, including claims or suits for contribution and/or
indemnity, of whatever nature, and all consequential damage on account of, or in
any way growing out of, as a consequence of, by reason of, or relating in any
way to all circumstances, events, occurrences, actions and omissions relating to
relating to any and an matters whatsoever.
2. CONSIDERATION: In consideration of Xxxxx executing this Release and as
full payment of any and all fees that may otherwise be due Xxxxx in connection,
with the acquisition of CyberCare, Inc., a Georgia corporation by Cyber. Cyber
hereby agrees to deliver to Xxxxx within 30 days of the date of this Release
75,000 shares of its restricted voting common stock, $.0025 par value (the
"CYBER SHARES").
3. REGISTRATION RIGHTS: Cyber shall use its reasonable best efforts to
effect a registration on Form S-3, or other appropriate form (the "REGISTRATION
STATEMENT"), and to register the Cyber
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Shares to be issued to Xxxxx contemporaneous with the registration of the
Acquisition Shares issued to the CCI stockholders in accordance with that
certain Registration Rights Agreement dated June 16, 1999 by and between Cyber
f/k/a Medical Industries of America, Inc., and CyberCare, Inc.. a Georgia
corporation. By this reference all covenants, terms and conditions of the
Registration Rights Agreement are specifically incorporated herein and hereby
become a material part hereof.
4. RESTRICTIONS ON RESALE: Xxxxx understands and acknowledges that sales
of large blocks of Cyber common stock could negatively impact the trading price
of the Cyber common stock- Accordingly, Xxxxx hereby agrees that for a period of
seven months after the date of the effective f date of the Registration
Statement (the "RESTRICTED SALE PERIOD") he will not, within any 30 day [
period, offer to sell, contract to sell. hypothecate, negotiate, pledge, assign,
encumber, loan, pledge, grant any rights with respect to or otherwise dispose
of, directly or indirectly (collectively, a "DISPOSITION"), a number of Cyber
Shares or securities convertible into or exchangeable or exercisable for any
Cyber Shares now owned or hereafter acquired by Xxxxx which exceeds 10,715
shares, other than a Disposition (i) to any donees who receive such Cyber Shares
as a bona fide gift and who are bound by the terms herein, or (ii) with the
prior written consent of Cyber.
Xxxxx acknowledges and agrees that t1te foregoing restriction also
expressly precludes Xxxxx from engaging in any hedging, short sales or other
transaction which is designed to or reasonably expected to lead to or result in
a Disposition of the Cyber Shares during the Restricted Sale Period, even if
such shares would be disposed of by someone other than Xxxxx. Such prohibited
hedging or other transactions would include, without limitation, any short sale
(whether or not against the box) or any purchase, sale, show of any shares or
grant of any right (including, without limitation, any put or call option) with
respect to any Cyber common stock or with respect to any security (other t1tan a
broad-based market basket or index) that includes, relates to or derives any
significant part of its value from the Cyber common stock.
Xxxxx agrees to submit each certificate for the Cyber Shares to Cyber for
imprinting of the following legends thereon:
"The sale, transfer, hypothecation, negotiation, pledge,
assignment, encumbrance or other disposition of this share
certificate and the shareholdings represented hereby are subject to
all of the terms, conditions and provisions of a Release dated as of
October 28, 1999, by and among Xxxxxx X. Mi1ist Jr. and Cyber-Care,
Inc.. a copy of which may be obtained from the Secretary of
Cyber-Care, Inc."
In furtherance of the foregoing, Cyber and its transfer agent and
registrar are hereby authorized to decline to make any transfer of the Cyber
Shares if such transfer would constitute a violation or breach of this Release.
5. TERMINATION OF CONSULTING AGREEMENT. This Release further memorializes
that the parties have terminated the Consulting Agreement and that no additional
fees, costs or expenses shall be paid to Xxxxx in connection therewith.
6. CONFIDENTIALITY: Each party agrees that they shall not disclose to any
third party the terms and conditions of this Release as well as any other
confidential information learned about the other party.
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7. BINDING EFFECT: This Re]ease shall be binding upon the parties and
their respective administrators, successors and assigns, and shall inure to the
benefit of the parties and their respective administrators, successors and
assigns.
8. SEVERABILITY: Should any of the provisions of this Release be
determined to be invalid by a Court of competent jurisdiction, the parties agree
that this shall not affect the validity or enforceability of the remaining
provisions, and that they shall renegotiate and reform any invalid provisions in
good faith to effectuate the purpose of the Release and to conform it to the
law.
9. ENTIRE AGREEMENT: This Release constitutes the entire understanding
between the parties and may not be modified without the express written consent
of the parties.
10. NO IMPROPER INDUCEMENT: The parties represent and acknowledge that in
executing this Release, they do not rely. and have not relied, on any
representation or statement made by any of the parties or their respective
agents. representatives or counsel with regard to the subject matter, bases or
effect of the Release or otherwise, other than as specifically stated in the
Release.
II. KNOWING AND VOLUNTARY: The parties hereto have read the foregoing
Release and fully understand it. The only promises made in connection with this
Release are those stared herein and Cyber and Xxxxx sign this Release knowingly
and voluntarily.
12. COUNTERPARTS: This Release may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument
13. GOVERNING LAW: This Agreement shal1 be governed by and construed in
accordance with the laws of the State of Florida to the exclusion of the law of
any other forum. without regard to the jurisdiction in which any action or
special proceeding may be instituted. Each party hereto agrees to submit to the
personal jurisdiction and venue of the state and/or federal cow1s located in
Palm Beach County, Florida, for resolution of all disputes arising out of or in
connection with or by reason of the interpretation, construction and enforcement
of this Agreement, and hereby waives the claim or defense therein that such
court constitutes in an inconvenient form. As material inducement for this
Agreement each party specifically waives the right to trial by jury for any
issues so trialable.
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IN WITNESS WHEREOF, the parties hereby execute this Release as of the date
and year first written above.
XXXXX: /s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx Xx.
October 28, 1999
CYBER: Cyber-Care, Inc.,
By: /s/Xxxx X. Xxxxxxx,
Its: President
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