Exhibit 10.4


 


November 20,
2009


 


InfoLogix
Systems Corporation


101
East County Line Road, Suite 210


Hatboro,
PA 19040


Attn:
John A. Roberts, Chief Financial Officer


 


Re:                                 Earn Out Agreement


 


Dear
Mr. Roberts:


 


Reference
is made to that certain Earn Out Agreement dated May 2, 2008 (the “Earn
Out Agreement”) by and between Delta Health Systems, Inc. (“Delta”) and
InfoLogix Systems Corporation (the “Company”). 
Capitalized terms used but not defined herein shall have the meaning
given to them in the Earn Out Agreement. 
In consideration of the mutual promises made in this letter agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound,
agree as follows:


 


1.                                         The parties acknowledge and
agree that the First Earn Out Amount is $430,000.  In lieu of receiving payment of the First
Earn Out Amount under the terms of the Earn Out Agreement, commencing as of September 1,
2009, Delta will participate in a Commission Plan, the form of which is
attached hereto as Exhibit A (the “Plan”). 
Under the Plan, the Company will pay Delta a monthly commission equal to
11.5% of collected revenue from the Business that the Company generates, if
any, during the applicable month.


 


2.                                         In exchange for the
commission plan  consideration described in this
letter agreement, Delta, for itself and on behalf of all of its directors,
officers, stockholders, successors, assigns and agents, does hereby remise,
release and forever discharge the Company and each and every of its
predecessors, successors, parents, subsidiaries, affiliates, assigns,
directors, officers, stockholders, employees or agents, both current and former
(the “Released Parties”), of and from every claim, demand, right of action or
cause of action whatsoever, and from all debts, obligations, costs (including,
without limitation, attorneys’ fees), expenses, damages, losses and liabilities
whatsoever, whether known or unknown, that Delta ever had, now has, or
hereafter may have against the Released Parties arising out of or relating to
any matter in respect of the First Earn Out Period and the First Earn Out
Amount.  Nothing in this release shall be
construed to alter any of the obligations that the Company has to Delta under that
certain Asset Purchase Agreement dated as of May 2, 2008 between Delta,
the Company and certain other parties named therein and, except as provided
herein, under the Earn Out Agreement.


 


3.                                         All
other terms and conditions of the Earn Out Agreement, including the rights and
obligations of the parties with respect to the Second Earn Out Period and the
Second Earn Out Amount, if any, shall remain unchanged and in full force and
effect.


 


4.                                         Nothing
herein shall be construed to alter or amend the Employment Agreement entered
into between Michael D. Talerico and the Company or the Employment Agreement
entered into between Michael Talerico, II and the Company.


 


5.                                         The
Company represents and warrants that it has obtained all requisite corporate
approvals, authorizations, resolutions, and ratifications to enter into this
letter agreement.  The 


 

















 


Company further represents that it has obtained all
requisite approvals and authorizations, if any, that are required by Hercules
Technology Growth Capital, Inc. (“Hercules”) and any other lenders to
enter into this letter agreement.  The Company further represents that
this letter agreement will not violate the terms of any existing agreements
with Hercules or any other lender of the Company.


 


6.                                         This
letter agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior negotiations, and
prior written or oral agreements concerning the subject matter hereof. 
This letter agreement may not be amended, supplemented or modified in whole or
in part except by a written agreement signed by the parties hereto.


 


Please
indicate your consent and agreement to be bound by the provisions of this
letter agreement by signing where indicated below.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  DELTA
  HEALTH SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
  /s/
  Michael D. Talerico

  
	
   

  	
  Name:

  	
  Michael
  D. Talerico

  
	
   

  	
  Title:

  	
  President

  



 


ACKNOWLEDGED
AND AGREED:


 


INFOLOGIX SYSTEMS CORPORATION


 


	
  /s/
  David T. Gulian

  	
   

  
	
  Name:

  	
  David
  T. Gulian

  	
   

  
	
  Title:

  	
  President

  	
   

  



 

















 





 


 


Exhibit A


 


Commission
Plan


 


	
  Recipient:

  	
  Delta Health
  Systems, Inc.

  
	
  Effective Period:

  	
  September 1, 2009
  until paid in full

  



 


Delta Health Consulting
Engagements


 


Commission
payout based on collected revenue during the effective period will be according
to the payout schedule below.


 




	
  Total Collected

  Revenue up to

  	
   

  	
  Commission Payout

  	
   

  
	
  $0 - $5,000,000

  	
   

  	
  11.5

  	
  %

  






 


Additional terms:


 


If
a sales commission is due another employee or independent contractor of the
Company as the result of referrals and mutually agreed upon account sharing,
the above commission will be reduced so that the total commission liability for
the Company equals 12%.


 


InfoLogix Referral Related Bonus
Plan


 


Bonuses related to collaboratively working with our
internal InfoLogix colleagues to obtain business referrals for software and
services will be payable quarterly at 2% of revenue upon collection.  Commission payment is related to the initial
consulting engagement (up to the first 12 months only) and consulting
extensions are not included as a new bonus eligible item.


 


Payment Schedule:


 


1.                 Commissions will be paid in
the last pay period of the month for the prior month, based on collected
revenues.


 

















 


2.                 Referral bonuses will be
paid the first month of a new quarter.


 


Base
Salary:


 


The
first component of executive compensation is an annual base salary. Base
salaries shall be paid in accordance with the Company’s regular payroll cycle.


 


Deductions
from Commission:


 


All
salary and commission payments are subject to withholding of federal, state and
local taxes and social security payments and any voluntary requested
deductions.


 


 


	
  /s/ Michael D. Talerico

  	
   

  	
  /s/ David T. Gulian

  
	
   

  	
   

  	
   

  
	
  Michael D. Talerico

  	
   

  	
  David T. Gulian

  
	
  On behalf of

  	
   

  	
  President and Chief
  Executive Officer

  
	
  Delta Health Systems Inc.

  	
   

  	
  InfoLogix, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  11/20/09

  	
   

  	
  11/20/09

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
  Date