EXHIBIT 10.1
CONSULTING AGREEMENT
This agreement is entered into by Xxxxxx Xxxxx, hereinafter referred to
"Consultant", and NeoMedia Technologies, hereinafter referred to as "NeoMedia",
and sets forth the terms and conditions for services to be rendered by
Consultant on behalf of NeoMedia.
SERVICES OF THE CONSULTANT
Xxxxxx Xxxxx will serve as your consultant to advise and assist you on
the formulation and implementation of management directives.
These services include, but are not be limited to, the following:
o Assistance in connection with potential acquisition transactions.
o Advice concerning the formulation and implementation of various
management programs intended to achieve targeted corporate
objectives.
TIMING, FEES AND EXPENSES
1. Consultant will commence its work with NeoMedia immediately. For the
consulting services provided during the term of the engagement, Consultant
charges a one time up front fee of 2 million options at an exercise price of
$.01 per option (the "Option Fee"), and 4,000,000 shares of registered stock,
(the "Stock Fee") at a 0 cost basis collectively representing the "Consulting
Fee". The consulting services will be for a period of 1 year. If NeoMedia
desires to terminate the services of the Consultant prior to the expiration of
this agreement, the Consulatnt will be entitled to retain the entire consulting
fee and no proration of this fee will be made.
2. NeoMedia will issue to Xxxxxx Xxxxx within two business days of
signing the consulting agreement the 2 million options and within 10 business
days of signing the consulting agreement issue to Xxxxxx Xxxxx 4,000,000 shares
of registered stock.
3. Travel expenses. All of Consultant's travel, lodging, meals and
airfare incurred on NeoMedia's behalf, over $250, shall be pre-approved. Airfare
shall be pre-paid directly by NeoMedia (rather than paid by, and subsequently
reimbursed to Consultant).
o All remittances will be made to Xxxxxx Xxxxx.
ADDITIONAL TERMS
This Agreement will commence with your signing this Agreement, and will
continue for a period of 365 days.
1. Consultant's relationship with NeoMedia shall be that of an
independent contractor and not that of an employee. Consultant will not be
eligible for any employee benefits, nor will NeoMedia make deductions from the
consulting fees for taxes, insurance, bonds or any other subscription of any
kind, which shall be Consultant's sole responsibility. Consultant will use its
best efforts in performing the services under this Agreement, within the scope
of work specified in this Agreement. The Consultant may use contractors or other
third parties of Consultant's choice to assist in rendering such services.
2. Confidentiality and non-disclosure. NeoMedia, their officers,
directors, employees and/or agents, understand that Consultant considers its
investors, source firms and compensation arrangements to be confidential and
proprietary, and agrees not to disclose any such information to any person or
firm outside of NeoMedia without prior written consent from Consultant, except
as required by law. NeoMedia's obligations under this paragraph shall survive
termination of this Agreement for a period of 24 months.
EXHIBIT 10.1-1
3. Consultant shall keep in confidence and shall not disclose or make
available to third parties or make any use of any information or documents
relating to the products, methods of manufacture, trade secrets, processes,
business or affairs or confidential or proprietary information of NeoMedia
(other than information in the public domain through no fault of Consultant),
except with the prior written consent of NeoMedia. Upon termination of this
Agreement Consultant will, upon request by NeoMedia, return all documents, and
other materials related to the services provided hereunder furnished to
Consultant by NeoMedia. Consultant's obligations under this paragraph shall
survive termination of this Agreement.
4. Consultant and NeoMedia further agree to indemnify and hold each
other harmless from and against any and all losses, claims or damages, including
any legal or other expenses reasonably incurred, in connection with defending
against any litigation, whether commenced or threatened, to which either
NeoMedia or Consultant may become subject under any statute, caused by, or
arising out of any service under this Agreement; provided, however, that neither
party shall be liable in any such case to the extent that any loss or damage is
found to have resulted from the other party's gross negligence, intentional
misrepresentation or violation of any statute or regulation.
5. In the event that any controversy or claim arises out of this
Agreement, the parties hereto shall negotiate in good faith to resolve such
controversy or claim. If such controversy or claim cannot be settled by the
parties through negotiation, such controversy or claim shall be settled by
binding arbitration. During the arbitration, both parties shall continue to
perform their obligations under this Agreement unless the Agreement has been
terminated. In addition to any other recovery, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and costs thereby incurred.
6. If any provision of this Agreement is held to be invalid or
unenforceable to any extent in any context, it shall nevertheless be enforced to
the fullest extent allowed by law in that and other contexts, and the validity
and force of the remainder of this Agreement shall not be affected thereby.
Further, a waiver of the non-performance of any provision of this Agreement must
be in writing and shall apply only to the particular non-performance involved
and shall not constitute an amendment, change or modification of this Agreement
or apply to any other performance requirement.
7. This agreement shall inure to the benefit of and be binding on the
respective parties hereto and the respective executors, administrators,
successors and assigns.
8. If accepted by NeoMedia and Consultant below, this Agreement shall
constitute a binding agreement between NeoMedia and Consultant. This Agreement
reflects the entire agreement between NeoMedia and Consultant, and the terms
herein shall not be modified except by a written amendment signed by the parties
hereto. The signatories below acknowledge that they have the necessary authority
of their respective parties, including board approval, if required, to enter
into this Agreement.
9. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New Jersey.
10. The Consultant is not a registered broker and will not provide the
services of a broker. If it is necessary to utilize the services of a registered
broker, any fees and/or costs of such a broker shall be borne by NeoMedia.
AGREED AND ACCEPTED:
XXXXXX XXXXX NEOMEDIA TECHNOLOGIES
Signature: /S/ XXXXXX XXXXX Signature: /S/ XXXXXXX X. XXXXXX
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Title: Title: President & COO
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Date: 11/25/02 Date: 11/21/02
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EXHIBIT 10.1-2
