EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the
“Agreement”)
is
made and entered into this 10th
day of
June 2008, by and between NEOMEDIA
TECHNOLOGIES, INC., a
Delaware corporation (the “Company”),
and
Xxxx XxXxxxxx (the “Executive”).
RECITALS
WHEREAS,
the
Company wishes to employ the Executive, and the Executive wishes to be employed
by the Company, on the terms and subject to the conditions contained in this
Agreement.
NOW,
THEREFORE,
in
consideration of the mutual promises, covenants and agreements contained herein,
and intending to be legally bound hereby, the Company and Executive do hereby
agree as follows:
1. Employment.
(a) The
Company hereby employs the Executive and the Executive hereby accepts employment
as the Chief Executive Officer of the Company.
(b) Subject
to the terms and conditions herein, the initial term of employment shall
commence on May 29, 2008 (the “Effective
Date”)
and
shall continue two (2) years from the Effective Date unless earlier
terminated as herein provided (the “Initial
Term”).
In
the event that either party desires to extend the Initial Term for an additional
period of time such party shall provide the other party with written notice
of
such desire at least six (6) months prior to the expiration of the Initial
Term.
Following such notice, the Initial Term may be extended upon mutual agreement
of
the parties hereto. The Initial Term and any extensions thereof shall be
referred to as the “Employment
Period.”
2. Position
and Duties.
(a) The
Executive shall be employed throughout the Employment Period as the Chief
Executive Officer of the Company. The Executive shall have the duties and
responsibilities consistent with and incumbent upon this position, but at all
times shall act in accordance with the directions given by the Board of
Directors.
(b) The
Executive’s principal place of employment shall be in Edinburgh, Scotland. The
Executive acknowledges, however, that significant domestic and international
travel may be required as part of his duties hereunder; and the Executive agrees
to undertake such travel as may be reasonably required by the business of the
Company from time to time.
(c) Whenever
the Chief Executive Officer of the Company is required by law, rule or
regulation or requested by any governmental authority or by the Company’s
auditors to provide certifications with respect to the Company’s financial
statements or filings with the Securities and Exchange Commission or any other
governmental authority, the Executive shall sign such certifications as may
be
reasonably requested by the Company.
3. Compensation.
(a) Base
Salary.
During
the Employment Period, the Company shall pay to the Executive an annual base
salary (“Base
Compensation”)
of One
Hundred Sixty Thousand British Pounds Sterling (£160,000) payable through a
payroll bureau located in the United Kingdom of Great Britain and Northern
Ireland in accordance with the Company’s customary payroll periods or such other
basis as may be determined by the Board of Directors and subject to any
applicable tax and payroll deductions required by law.
(b) Incentive
Bonus Compensation.
The
Executive shall receive incentive bonus compensation the “Incentive
Bonus”)
for
each fiscal year of the Company in an amount of:
(i) Twenty
Thousand British Pounds Sterling (£20,000) (the “Fixed
Bonus”);
and
(ii) up
to
thirty-seven and one-half percent (37.5%) of the Base Compensation for such
fiscal year, based upon objectives determined by the Board of Directors or
the
Compensation Committee thereof in its sole discretion.
The
Incentive Bonus shall be subject to applicable tax and payroll deductions
required by law. The Incentive Bonus shall be pro rated for any fiscal year
that
is less than a full fiscal year. The payment of the pro rated amount of the
Fixed Bonus for the 2008 fiscal year shall occur on or about August 29, 2008.
(c) Sale
Bonus. If
(i) the Company has consummated a Sale Transaction (as defined below)
within eighteen (18) months after the Effective Date, (ii) the Sale Proceeds
(as
defined below) are in excess of $45,000,000, (iii) the Executive remains
actively employed with the Company through the consummation of the Sale
Transaction, (iv) the Executive is otherwise in compliance with the terms
of this Agreement as may be amended at any time in the future, and (v) the
Executive complies with, and uses commercially reasonable efforts to take
such
actions as are necessary to cause the Company to comply with, the terms and
conditions of agreements entered into by the Executive or the Company effecting
or otherwise relating to the Sale Transaction, the Executive will be eligible
to
receive a sale bonus in connection with such Sale Transaction equal to the
product of 0.025 and the Sale Proceeds; provided, that for the purposes of
such
calculation the amount of Sale Proceeds shall be deemed to not exceed
$200,000,000 (the “Sale
Bonus”).
The
Sale Bonus shall be subject to any applicable tax and payroll deductions
required by law.
The
benefit described in this Section
3(c)
shall be
payable in a single lump sum as soon as practicable, but not more than ten
(10) business days following the consummation of the Sale Transaction (or
receipt of Sale Proceeds which are not Contingent Sale Proceeds (as defined
below) sufficient to trigger the Company’s obligation to pay a Sale Bonus);
provided that any Sale Bonus amount the Executive is entitled to receive
pursuant to this Section 3(c),
shall
not be payable
to the Executive until such time as the Company’s stockholders have received
payment with respect to their equity interests pursuant to the terms of the
agreement to engage in the Sale Transaction. In the event that: (x) any
portion of the Sale Proceeds is required by the terms of the Sale Transaction
to
be placed into escrow, retained or held back by the buyer, or the payment
thereof is otherwise subject to contingencies based upon the occurrence of
future events (“Contingent
Sale Proceeds”),
the
Company will not pay the Executive the portion of the Sale Bonus attributable
to
the Contingent Sale Proceeds until such time as, and only to the extent that,
the Contingent Sale Proceeds are released from escrow, no longer are retained
or
held back by the buyer, or otherwise no longer are subject to payment
contingencies, as the case may be (“Released
Sale Proceeds”);
and
(y) the aggregate amount of Sale Proceeds in a Sale Transaction that do not
constitute Contingent Sale Proceeds is insufficient to trigger the Company’s
obligation to pay a Sale Bonus, then the Sale Bonus shall not be paid unless
and
until the Sale Proceeds which are not Contingent Sale Proceeds are sufficient
to
trigger the Company’s obligation to pay a Sale Bonus (e.g., because sufficient
Contingent Sale Proceeds have been released from escrow, no longer are retained
or held back by the buyer, or no longer are subject to payment contingencies).
2
In
the
event that the benefits described in this Section
3(c)
constitute “deferred compensation” payable to a “key employee” of a
publicly-traded corporation pursuant to Section 409A of the Internal
Revenue Code of 1986, as amended, on account of separation from service,
such
benefit shall not be payable until six (6) months following Executive’s
separation from service and shall not accrue interest during such six (6)
month
period.
As
used
in this Agreement:
(i) A
“Sale
Transaction”
shall
be
deemed to have occurred upon the occurrence of any one or more of the following
events: (1) any “person” or “group” (as such terms are used in connection with
Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the
“Exchange
Act”))
but
excluding the Executive or any employee benefit plan of the Company (A)
is or
becomes the “beneficial owner” (as defined in Rule l3d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing
fifty
percent (50%) or more of the combined voting power of the Company’s outstanding
securities then entitled to vote for the election of directors; or (2)
there
shall be consummated (A) any consolidation, merger or recapitalization
of the
Company or any similar transaction involving the Company, where the Company
is
not the continuing or surviving corporation, or (B) any sale, lease, exchange
or
other transfer (in one transaction or a series of related transactions)
of all,
or substantially all of the assets of the Company; provided that a transaction
solely for the purpose of reincorporating the Company in another jurisdiction,
shall not constitute a Sale Transaction. For purposes of Section
3(c)(i)(2)(B)
the
receipt of aggregate Sale Proceeds with respect to the sale of the components
of
the Company’s business (in one transaction or a series of related transactions)
of more than $45,000,000 shall be deemed to constitute a sale of substantially
all of the assets of the Company.
(ii) The
term “Sale
Proceeds”
means the total amount of cash and fair market value (on the date of
payment) of all property paid or payable (including amounts paid in escrow)
in
connection with the Sale Transaction. For purposes of calculating Sale
Proceeds,
the value of securities, whether debt or equity, that are freely tradeable
in an
established public market will be determined on the basis of the average
closing
price in such market for the ten (10) trading days prior to the closing
of the
Sale Transaction (the “Valuation
Date”);
and
the value of securities that have no established public market or other
property
will be the fair market value of such securities or other property on the
Valuation Date as determined in good faith by the Board of Directors of
the
Company. If Sale Proceeds include any restricted stock (i.e. stock in a
public
company not freely tradeable), the value of the restricted stock shall
be
calculated by the Board of Directors in good faith.
3
(d) Options. Subject
to approval of the Company’s Board of Directors, the Company shall issue to the
Executive (i) an option to acquire Sixteen Million Twenty-Five Thousand
Six
Hundred Forty-Three (16,025,643) shares of the Company’s common stock, par value
$0.01 per share (the “Common Stock”), at a per share exercise to be determined
prior to or upon the date of the grant (the “First
Option”)
and
(ii) an option to acquire Sixteen Million Twenty-Five Thousand Six Hundred
Forty-Three (16,025,643) shares of the Company’s Common Stock at a per share
exercise to be determined prior to or upon the date of the grant (the
“Second
Option,”
and
together with the First Option, the “Options”).
The
First Option shall vest with respect to one hundred percent (100%) of
the shares
subject to the First Option eighteen months after the Effective Date,
subject to
Executive’s employment with the Company on such date. The Second Option shall
vest with respect to 1/15th
of the
shares subject to the Second Option each month following the Effective
Date,
subject to the continued employment of Executive on such dates, such
that the
Second Option is vested and exercisable with respect to one hundred percent
(100%) of the shares subject to the Second Option fifteen (15) months
after the
Effective Date. Notwithstanding the foregoing, upon the occurrence of
a Sale
Transaction all unvested Options immediately shall be vested and
exercisable.
Except
as
otherwise expressly provided in this Agreement, all terms and conditions
concerning the granting and exercise of the Options awarded to the Executive
hereunder, shall be governed by the Company's option plan, as such plan
may be
amended from time to time. The Options shall be memorialized by a stock
option
agreement between the Company and the Executive.
(e) Expense
Reimbursement.
Upon
submission of adequate documentation by the Executive, the Company shall
reimburse the Executive for all reasonable expenses paid or incurred
by him in
the performance of the services contemplated hereunder in accordance
with the
Company’s reimbursement policies as determined from time to time in the sole
discretion of the Board of Directors (the “Business
Expenses”).
For
the avoidance of doubt, Business Expenses shall include the reasonable
cost of
home telephone and mobile phone calls made by the Executive in the performance
of the services contemplated hereunder and the reasonable cost of a
scanner/facsimile machine. Any
disputes as to the eligibility of an expense for reimbursement shall
be resolved
in the sole discretion of the Board of Directors.
(f) Executive
Benefits.
In lieu
of participation in the Company’s benefit programs, the Company shall pay the
Executive an annual bonus of Six Thousand Niney-Five British Pounds Sterling
(£6,095) (the “Benefit
Bonus”).
The
Benefit Bonus shall be subject to applicable tax and payroll deductions
required
by law. The Benefit Bonus shall be pro rated for any fiscal year that
is less
than a full fiscal year.
(g) Vacation.
The
Executive shall be entitled in each of the Company’s fiscal years to a vacation
of twenty-five (25) days, during which time his compensation shall be
paid in
full, and such holidays and other non-working days as are consistent
with the
policies of the Company for executives generally. The Executive agrees
to
utilize his vacation at such time or times as are (i) consistent with
the proper
performance of his duties and responsibilities and (ii) mutually convenient
for
the Company and the Executive. The number of vacation days available
hereunder
shall be pro rated for any fiscal year that is less than a full fiscal
year.
4
4. Restrictive
Covenants.
(a) Definitions.
(i) The
term
“Company”
for
purposes of Section
4
of this
Agreement shall mean NeoMedia Technologies, Inc., a Delaware corporation,
and
its affiliated and related entities including, but not limited to,
all of
NeoMedia Technology, Inc.’s Subsidiaries, affiliates and joint venturers. It is
understood that any affiliated or related entities of NeoMedia Technologies,
Inc. are intended third-party beneficiaries of the provisions of this
Agreement.
(ii) The
term
“Customer”
shall
mean any person or entity which has purchased goods, products or services
from
the Company, entered into any contract for products or services with
the
Company, and/or entered into any contract for the distribution of any
products
or services with the Company within the one (1) year immediately preceding
the
termination of the Executive’s employment with the Company for whatever
reason.
(iii) The
phrase “directly
or indirectly”
shall
include the Executive either on his own account, or as a partner, owner,
promoter, joint venturer, employee, agent, consultant, advisor, manager,
executive, independent contractor, officer, director, stockholder,
or otherwise,
of an entity.
(iv) The
term
“Non-Compete
Period”
shall
mean the twelve (12) months immediately following termination of the
Executive’s
employment with the Company for whatever reason.
(v) The
term
“Prospective
Customer”
shall
mean any person or entity which has purchased goods, products or services
from
the Company, entered into any contract for products or services with
the
Company, and/or entered into any contract for the distribution of any
products
or services with the Company within the one (1) year immediately preceding
the
termination of the Executive’s employment with the Company for whatever
reason.
(vi) The
term
“Restricted
Area”
shall
include any geographical location anywhere in the world where Executive
has been
assigned to perform services on behalf of the Company during the Employment
Period and where the Company, its affiliates or Subsidiaries either
(1) is
engaged in business, and (2) has evidenced an intention to engage in
business.
(vii) “Subsidiaries”
means
any corporation, partnership, limited liability company, joint venture,
or other
business enterprise in which NeoMedia Technologies, Inc., directly
or
indirectly, owns 50% or more of the outstanding equity or other ownership
interest.
(viii) The
term
“Vendor”
shall
mean any supplier, person or entity from which the Company has purchased
products or services during the one (1) year immediately preceding
the
termination of the Executive’s employment with the Company for whatever
reason.
5
(b) Non-Competition.
During
the Employment Period and Non-Compete Period, in the Restricted Area,
the
Executive shall not, directly or indirectly, engage in, promote,
finance, own,
operate, develop, sell or manage or assist in or carry on in any
business in
competition with the business of the Company, as such business now
exists or as
it may exist at the time of the termination of the Executive’s employment with
the Company for whatever reason; provided, however, that Executive
may at any time own securities of any competitor corporation whose
securities
are publicly traded on a recognized exchange so long as the aggregate
holdings
of the Executive in any one such corporation shall constitute not
more than 5%
of the voting stock of such corporation. During the Non-Compete Period,
for
purposes of this Section
4(b)“any
business in competition with the business of the Company” shall mean any
business or entity set forth on Schedule
I
attached
hereto.
(c) Non-Solicitation
of Employees or Independent Contractors.
During
the Employment Period and the Non-Compete Period, the Executive shall
not,
directly or indirectly, solicit or attempt to induce any employee
of the Company
or independent contractor engaged and/or utilized by the Company
in any capacity
to terminate his employment with, or engagement by, the Company.
Likewise,
during the Employment Period and the Non-Compete Period, the Executive
shall
not, directly or indirectly, hire or attempt to hire for another
entity or
person any employee of the Company or independent contractor engaged
and/or
utilized by the Company in any capacity.
(d) Non-Solicitation
of Customers, Prospective Customers or Vendors.
During
the Employment Period and the Non-Compete Period, the Executive shall
not,
directly or indirectly, sell, assemble, manufacture or distribute
products or
services of the type sold or distributed by the Company to any Customer,
Prospective Customer or Vendor of the Company in the Restricted Area
through any
entity other than the Company. The Executive acknowledges and agrees
that the
Company has substantial relationships with its Customers and Vendors,
which the
Company expends significant time and resources in acquiring and maintaining,
and
that the Company’s relationships with its Customers and Vendors constitute a
significant and valuable asset of the Company.
(e) Non-Disclosure
of Confidential Information.
The
Executive agrees and acknowledges that, by reason of the nature of
his duties as
an officer and employee of the Company, he will have access to and
become
informed of confidential and secret information (oral or written)
that is a
competitive asset of the Company (“Confidential
Information”),
including any lists of customers or suppliers, financial statistics,
research
data or any other statistics and plans contained in profit plans,
capital plans,
critical issue plans, strategic plans, marketing or operational plans,
technical
data and information, product information or other information of
the Company
(whether or not such information qualifies as a “trade secret” under applicable
law) and any of the foregoing that belong to any third person or
company but to
which the Executive has had access by reason of his employment relationship
with
the Company. The Executive agrees to faithfully keep in strict confidence,
and
not, either directly or indirectly, to make known, divulge, reveal,
furnish,
make available or use (except for use in the regular course of his
employment
duties) any such Confidential Information. The Executive acknowledges
that all
manuals, instruction books, price lists, information and records
and other
information and aids relating to the Company’s business, and any and all other
documents (and all copies thereof) containing Confidential Information
furnished
to the Executive by the Company or otherwise acquired or developed
by the
Executive, shall at all times be and remain the property of the Company.
Upon
termination of the Employment Period, the Executive shall return to the Company
all such property or documents (and all copies thereof) that are
in his
possession, custody or control, but his obligation of confiden-tiality
shall
survive such termination of the Employment Period until and unless
any such
Confidential Information shall have become, through no fault of the
Executive,
generally known to the public. The obligations of the Executive under
this
subsection are in addition to, and not in limitation or preemption
of, all other
obligations of confidentiality that the Executive may have to the
Company under
general legal or equitable principles or otherwise.
6
(f) Need
for Restrictions.
The
Executive acknowledges and agrees that each of the restrictive
covenants
contained in this Section
4
is
reasonable and necessary to protect the legitimate business interests
of the
Company, including, without limitation, the need to protect the
Company’s trade
secrets and Confidential Information and the need to protect its
relationships
with its Customers, Prospective Customers, Vendors and agents.
The Executive
also acknowledges and agrees, as set forth in Section
4(h)
below,
that the Company may obtain a temporary and/or permanent injunction
to restrain
any violations or, or otherwise enforce, the restrictive covenants
contained in
Section
4.
(g) Ownership
by Company.
The
Executive acknowledges and agrees that any of his work product
created, produced
or conceived in connection with his association with the Company
shall be deemed
work for hire and shall be deemed owned exclusively by the Company.
The
Executive agrees to execute and deliver all documents required
by the Company to
document or perfect the Company’s proprietary rights in and to the Executive’s
work product.
(h) Breach
of Restrictive Covenants.
In the
event of a breach by the Executive of any restrictive covenant
set forth in
Section
4,
the
Executive agrees that such a breach would cause irreparable injury
to the
Company, and that if the Company shall bring legal proceedings
against the
Executive to enforce any restrictive covenant, the Company shall
be entitled to
seek all available civil remedies, at law or in equity, including,
without
limitation, an injunction without posting a bond, damages, attorneys’ fees, and
costs.
(i) Successors
and Assigns.
The
Company and its successors and assigns may enforce these restrictive
covenants.
(j) Construction,
Survival.
If the
period of time, area, or scope of restriction specified in this
Section
4
should
be adjudged unreasonable in any proceeding, then the period of
time, area, or
scope shall be reduced so that the restrictions may be enforced
as is adjudged
to be reasonable. If the Executive violates any of the restrictions
contained in
this Section
4,
the
restrictive period shall be tolled during the time that the Executive
is in
violation. All the provisions of this Section
4
shall
survive the term of this Agreement and the Executive’s employment with the
Company.
7
5. Termination.
(a) Termination
upon Death.
Executive’s employment hereunder shall terminate upon the death of Executive;
provided, however, that for purposes of this Agreement the Date
of Termination
(as defined below) based upon the death of Executive shall be deemed
to have
occurred on the last day of the month in which the death of the
Executive shall
have occurred.
(b) Termination
upon Incapacity.
If the
Executive is unable to perform the essential functions of his position,
with or
without reasonable accommodation, for a period in excess of thirty
(30) days
during the previous 12 months, due to a physical or mental illness,
disability
or condition, the Company may terminate Executive’s employment hereunder at the
end of any calendar month by giving written Notice of Termination
to Executive.
Any questions as to the existence, extent or potentiality of illness
or
incapacity of Executive upon which the Company and Executive cannot
agree shall
be determined by a qualified independent physician selected by
the Company. The
determination of such physician certified in writing to the Company
and to
Executive shall be final and conclusive for all purposes of this
Agreement.
Section
5(b)
of this
Agreement is intended to be interpreted and applied consistent
with any laws,
statutes, regulations and ordinances prohibiting discrimination,
harassment
and/or retaliation on the basis of a disability.
(c) Termination
for Cause.
The
Company may terminate Executive’s employment hereunder for Cause (as defined
below) by giving written Notice of Termination to Executive. The
Date of
Termination (as defined below) shall be specified in the Notice
of Termination.
For the purpose of this Agreement, the Company shall have “Cause”
to
terminate Executive’s employment hereunder upon Executive’s (i) material breach
of his obligations under the terms of this Agreement, which breach
remains
uncured within ten (10) business days after receiving written notice
of such
breach from the Company, (ii) committed act(s) of gross misconduct
injurious to
the Company; (iii) conviction of a crime involving moral turpitude
or
constituting a felony under the laws of any state, the District
of Columbia or
of the United States of America, (iv) engagement in illegal drug
use or alcohol
abuse which prevents the Executive from performing his duties in
the manner
contemplated under this Agreement, (v) any misappropriation, embezzlement
or
conversion of the Company’s or any of its Subsidiary’s or affiliate’s property
by the Executive, or (vi) willful and material misconduct by the
Executive in
respect of the duties or obligations of the Executive under this
Agreement.
(d) Termination
by the Company without Cause.
The
Company may terminate the Executive’s employment at any time without Cause by
delivering written notice to the Executive. The Date of Termination
shall be
specified in the Notice of Termination.
(e) Termination
by the Executive.
The
Executive may terminate this Agreement by delivering written notice
to the
Company. The Executive shall provide thirty (30) calendar days
written notice to
the Company. The Date of Termination shall be specified in the
Notice of
Termination; provided however, that the Date of Termination shall
not be earlier
than ninety (90) calendar days after delivery of the Notice of
Termination.
(f) Notice
of Termination.
Notice
of Termination to effectuate a termination under Section
5
shall be
made in accordance with the Notice provision defined in Section
6.
For
purposes of this Agreement, a “Notice
of Termination”
shall
mean a notice, in writing, which shall indicate the specific termination
provision of this Agreement relied upon as the basis for the Termination
and the
Date of Termination. The Date of Termination shall not be earlier
than the date
such notice is delivered; provided however, that the Company, at
its option, may
in all cases elect to have the Executive not report to work after
the date of
the written notice.
8
(g) Date
of Termination.“Date
of Termination”
means
the date on which this Agreement shall terminate in accordance
with the
provisions of this Section
5.
(h) Obligation
to Pay.
(i) For
terminations under Section
5(a),
the
estate of Executive shall be paid any Incentive Bonus awarded before
death, any
Benefits Bonus if it was otherwise payable to the Executive at
the time of his
death and any Sale Bonus if it was otherwise payable to the Executive
at the
time of his death. The estate of the Executive also shall be paid
the pro-rated
Base Salary and any accrued but unused vacation through the end
of the month in
which the death of Executive occurred. The estate of the Executive
also will be
paid any Business Expenses incurred before the Date of Termination.
The
Incentive Bonus and the Benefits Bonus will be pro-rated to the
Date of
Termination. The Company shall have no further obligation to the
Executive under
this Agreement.
(ii) For
terminations under Section
5(b),
the
Executive or the person charged with legal responsibility for the
Executive’s
estate shall be paid any Incentive Bonus awarded before the Date
of Termination,
any Benefits Bonus if it was otherwise payable to the Executive
at the Date of
Termination and any Sale Bonus if it was otherwise payable to the
Executive at
the Date of Termination. The Executive or the person charged with
legal
responsibility for the Executive’s estate also shall be paid the pro-rated Base
Salary and any accrued but unused vacation through the Date of
Termination. The
Executive or the person charged with legal responsibility for the
Executive’s
estate also will be paid any Business Expenses incurred before
the Date of
Termination. The Incentive Bonus and the Benefits Bonus will be
pro-rated to the
Date of Termination. The Company shall have no further obligation
to the
Executive under this Agreement.
(iii) For
terminations for Cause under Section
5(c),
the
Company shall pay the Executive his Base Salary through the Date
of Termination
and any Business Expenses incurred before the Date of Termination.
The Company
shall have no further obligations to Executive under this Agreement.
The
Executive foregoes any entitlement to any unpaid Incentive Bonus,
any unpaid
Benefit Bonus, any unpaid Sale Bonus, non-awarded Options and to
all remaining
Base Salary and benefits.
(iv) For
terminations without Cause under Section
5(d),
the
Company shall pay the Base Salary specified in this Agreement to
Executive for
nine (9) months from the Date of Termination set forth in the Notice
of
Termination. The Base Salary will be paid at regular payroll intervals
until the
expiration of the nine (9) months. The Executive only shall receive
a pro-rated
Benefits Bonus if it was otherwise payable to the Executive at
the Date of
Termination, a pro-rated Incentive Bonus if awarded before the
Date of
Termination, any Business Expenses incurred before the Date of
Termination, and
accrued but unused vacation. The Executive will not be entitled
to receive any
other Incentive Bonus, Benefits Bonus or other benefits (including
non-awarded
Options) which were not awarded before the Date of Termination.
The Company
shall have no further obligation to the Executive under this Agreement
other
than the payment of any Sale Bonus pursuant to Section
3(c).
9
(v) For
terminations without Cause under Section
5(e),
if the
Executive terminates the Agreement, he waives all claims to any
unpaid Incentive
Bonus, any unpaid Benefits Bonus and any unpaid Sale Bonus. Likewise,
the
Company’s obligation to pay Base Salary, any Business Expenses incurred
before
the Date of Termination, the Incentive Bonus, the Benefits Bonus,
the Sale Bonus
and other benefits ceases on the Date of Termination (i.e., last
day worked) by
the Executive. The Company shall have no further obligation to
the Executive
under this Agreement.
6. Notice.
For the
purpose of this Agreement, notices and all other communications
to either party
hereunder provided for in the Agreement shall be in writing and
shall be deemed
to have been duly given when delivered in person or mailed by certified
mail,
return receipt requested, postage prepaid, or sent by telecopy:
|
in
the case of the Company to:
|
NeoMedia
Technologies, Inc.
|
|
Xxx
Xxxxxxxxx Xxxxxxx
|
|
|
Xxxxx
000
|
|
|
Xxxxxxx,
XX 00000
|
|
|
XXX
|
|
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(000)
0000-0000 (facsimile)
|
|
|
Attention:
Chief Financial Officer
|
|
|
with
a copy to:
|
Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP
|
|
000
Xxxxx Xxxxxxxx Xxxxxxxxx - 00xx Xxxxx
|
|
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Xxxxx,
Xxxxxxx 00000
|
|
|
XXX
|
|
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(000)
000-0000 (facsimile)
|
|
|
Attention:
Xxxxxxx
X. Xxxxxx, Esq.
|
|
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in
the case of Executive to:
|
Xxxx
X. XxXxxxxx
|
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0
Xxxxx Xxxxxxxxxx Xxxxxxx
|
|
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Xxxxxxxxxx,
XX
|
|
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XX000XX
|
|
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x00
0000000000 (facsimile)
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or
to
such other address as either party shall designate by giving written
notice of
such change to the other party.
7. Books
and Records.
All
books, records, documents, accounts and other materials of any
kind regarding
the Company or any of its Subsidiaries, including, without limitation,
marketing
materials, electronic mail, and computer files, tapes and discs,
and all copies,
summaries or extracts of any such materials, whether prepared by
the Executive
or otherwise coming into the Executive’s possession, shall be the exclusive
property of the Company and shall be returned immediately to the
Company upon
the expiration or termination of this Agreement for any reason
or upon request
by the Board of Directors. The Executive’s obligations under this Section 7
shall
exist whether or not any of these materials contain Confidential
Information.
The parties hereto shall comply with all applicable laws and regulations
regarding retention of and access to this Agreement and all books,
documents and
records in connection therewith.
10
8. Prior
Agreements.
The
Executive represents to the Company (a) that there are no restrictions,
agreements, or understandings whatsoever to which the Executive
is a party which
would prevent or make unlawful the Executive’s execution of this Agreement or
employment hereunder, (b) that the Executive’s execution of this Agreement and
employment hereunder shall not constitute a breach of any contract,
agreement or
understanding, oral or written, to which the Executive is a party
or by which
the Executive is bound, and (c) that the Executive is free and
able to execute
this Agreement and to enter into employment by the Company. A written
or oral
notice or complaint that Executive breached this provision or violated
a
restrictive covenant or an agreement not to disclose confidential
information
shall subject the Executive, at the Company’s sole discretion, to immediate
termination with Cause. The Executive also agrees to fully indemnify
the Company
for any and all damages, costs and/or attorney’s fees incurred by the Company
that arise from any claims that were related to the Executive’s alleged breach
of a restrictive covenant or an agreement not to disclose confidential
information.
9. Specific
Performance.
It is
agreed that the rights granted to the parties hereunder are of
a special and
unique kind and character and that, if there is a breach by any
party of any
material provision of this Agreement, the other party would not
have any
adequate remedy at law. It is expressly agreed, therefore, that
the rights of
the parties hereunder may be enforced by an action for specific
performance and
other equitable relief without the parties posting a bond.
10. Further
Assurances.
Each of
the parties hereto shall execute and deliver any and all additional
papers,
documents and other assurances, and shall do any and all acts and
things
reasonably necessary in connection with the performance of their
obligations
hereunder and to carry out the intent of the parties hereto.
11. Right
to Review and Seek Counsel.
The
Executive acknowledges that he has had the opportunity to seek
independent
counsel and tax advice in connection with the execution of this
Agreement and
the Executive acknowledges that he has not relied on any representation
of the
Company as to tax matters, or as to the consequences of the execution
hereof.
12. Waiver.
The
waiver by the Company of a breach or threatened breach of this
Agreement by the
Executive shall not be construed as a waiver of any subsequent
breach by the
Executive.
13. Entire
Agreement/Amendments.
No
provision of this Agreement may be modified, waived or discharged
unless such
waiver, modification or discharge is approved by the Board of Directors
and
agreed to in writing signed by Executive and such officer as may
be specifically
authorized by the Board of Directors. This Agreement contains the
entire
understanding of the parties hereto and no agreements or representations,
oral
or otherwise, express or implied, with respect to the subject matter
hereof have
been made by either party, which are not set forth expressly in
this Agreement.
This Agreement supersedes all negotiations, preliminary agreements,
and all
prior and contemporaneous discussions and understandings of the
parties hereto
and/or their affiliates, including the Executive’s prior consultancy agreement
with the Company. The Executive acknowledges that he has not relied
on any prior
or contemporaneous discussions or understandings in entering into
this
Agreement.
11
14. Governing
Law; Venue.
This
Agreement shall be governed and construed in accordance with the
laws of the
State of Delaware (without reference to the choice of law provisions
of Delaware
law). In addition, each of the parties hereto (a) consents to submit
itself to
the personal jurisdiction of any federal court located in the State
of Delaware
or of any state court located in the State of Delaware in the event
any dispute
arises out of this Agreement, (b) agrees that it will not attempt
to deny or
defeat such personal jurisdiction by motion or other request for
leave from any
such court and (c) agrees that it will not bring any action relating
to this
Agreement or the transactions contemplated by this Agreement in
any court other
than a federal court located in the State of Delaware or a state
court located
in the State of Delaware (other than to enforce the judgment of
such
court).
15. Headings
and Captions.
The
titles and captions of paragraphs and subparagraphs contained in
this Agreement
are provided for convenience of reference only, and shall not be
considered
terms or conditions of this Agreement.
16. Validity.
The
invalidity or unenforceability of any provision of this Agreement
shall not
affect the validity or enforceability of any other provision of
this Agreement,
which shall remain in full force and effect.
17. Survival.
The
parties hereto specifically acknowledge and agree that all of the
provisions of
Sections
4, 5, 6, 7, 14
and
18.
and
such other provisions of this Agreement shall survive (a) the expiration of
the Employment Period of this Agreement or (b) the termination of this
Agreement for any reason, as necessary to carry out the intentions
of the
parties expressed herein.
18. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the
Company and its
successors and assigns, and the Executive agrees that this Agreement
may be
assigned by the Company. This Agreement is not assignable by the
Executive.
19. Neutral
Construction.
No
party may rely on any drafts of this Agreement in any interpretation
of the
Agreement. Each party to this Agreement has reviewed this Agreement
and has
participated in its drafting and, accordingly, no party shall attempt to invoke
the normal rule of construction to the effect that ambiguities
are to be
resolved against the drafting party in any interpretation of this
Agreement.
20. Counterparts.
This
Agreement may be executed in one or more counterparts, each of
which shall be
deemed to be an original but all of which together will constitute
one and the
same instrument.
12
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement on June 10, 2008.
|
NEOMEDIA
TECHNOLOGIES, INC.,
a Delaware corporation |
XXXX
XXXXXXXX
|
|||||||||
|
By:
|
/s/ Xxxxx Xxxxxx |
By:
|
/s/ Xxxx XxXxxxxx | |||||||
|
Name:
Xxxxx
Xxxxxx
|
||||||||||
|
Title:
Chief
Financial Officer
|
||||||||||
13
SCHEDULE
I
ScandBuy
3GVision
Mobiletag
Beetag
ShotCode
14
