EXHIBIT 10.21
SETTLEMENT AGREEMENT AND MUTUAL RELEASE AGREEMENT
WHEREAS, Ripfire, Inc. ("Ripfire") entered into a Ripfire Queryserver
Agreement ("Agreement") with Neomedia Technologies, Inc. on or about May 4,
2001; The parties acknowledge that the Agreement, and the license provision for
the Ripfire Queryserver software set forth in said Agreement, has been
terminated by the terms and conditions of the Agreement.
WHEREAS, Ripfire has filed a complaint to recovery the sum $133,000,
plus interest and court costs, claimed due and owing by NeoMedia pursuant to the
Ripfire Queryserver Agreeement; and
WHEREAS, Neomedia and Ripfire wish to fully resolve this matter through
payment of $133,000 ("Agreed Liability Amount"), it is hereby agreed as follows:
FOR AND IN CONSIDERATION as set forth below and this Settlement
Agreement and Mutual General Release Agreement (hereinafter referred to as
"Agreement"), PLUMTREE SOFTWARE, as the successor in interest to Ripfire, and
Neomedia hereby agree on behalf of themselves, their officers, directors,
agents, and assigns, to fully release and discharge each signatory hereto and
their assigns, attorneys, officers, directors, shareholders, agents, and
employees from all rights, claims, causes of action, demands, damages, losses,
or inquiries to the parties, persons and property, real or personal, whether
known, unknown, foreseeable, unforeseeable, patent, now existing or arising
hereafter, arising out of or pertaining to the commencement, prosecution and/or
continuation of the certain litigation pending in the Superior Court of the
State of California, County of San Francisco, bearing Case Number 323900,
entitled Ripfire, inc. v. Neomedia Technologies, Inc.
TRANSFER OF STOCK TO RIPFIRE
1. As and for consideration of the releases provided herein and
complete payment for any and all obligations to Ripfire, Neomedia will promptly
submit 1.5 million Neomedia common shares for registration with the Securities
Exchange Commission ("SEC"). On the effective date of registration by the SEC of
the aforesaid common shares, Neomedia will issue to Ripfire and equivalent
number of registered common shares equal to $133,000. The equivalent number of
registered common shares equal to the Agreed Liability Amount shall be valued
based on the average market price over five (5) business days prior to the
effective registration date of the aforesaid common shares.
2. Neomedia has advised Ripfire that it has commenced the process to
register the shares of stock contemplated to be transferred to Ripfire with the
SEC. Neomedia shall cause the necessary documents to be filed with the SEC on or
before September 9, 2002, and shall use its best efforts to cause such
registration statement to become effective within 60 days thereafter. The
parties acknowledge and agree that Ripfire can rescind this settlement if the
stock transfer is not completed on or before October 15, 2002. Nothing in this
Agreement is intended to require or to prevent the parties from extending this
deadline. Any such extension must be in writing and executed by representative
of both parties.
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LIMITATIONS ON SALE OF STOCK
3. On any trading day, Ripfire shall not directly or indirectly, offer
to sell, show for sale, grant an option for sale of, assign, transfer or
otherwise dispose of more than the number of shares equal to seventy-five
percent (75%) of the thirty (30) day average trading volume of the Company's
common stock immediately prior to the date of such offer or sale. Excluded from
this limitation will be any private sale of the shares. In that instance, the
transferee will be bound by that limitation.
SCOPE OF AGREEMENT
4. Each party has read and understood and expressly waives the
provisions of California Civil Code Section 1542, which provides:
A general release does not extend to the claims which the creditor does
not know or suspect to exist in his favor at the time of executing the release,
which if know by him must have materially affected his settlement with the
debtor.
5. The parties hereby understand and acknowledge the significance or
consequence of such specific waiver of Section 1542, and hereby expressly agree
that this Agreement shall apply to all unknown, unforeseen, unanticipated, and
latent damages, as well as those which are known, foreseen, anticipated, and
patent, or arising out of its subject matter.
NO ADMISSION OF LIABILITY
6. This Agreement is a result of compromise of a disputed claim, and in
no way shall be construed as an admission of liability or nonliability as the
case may be, and this Agreement may not be introduced into evidence in any court
of law for the purpose of proving liability or nonliability of the claims hereby
released.
WARRANTY OF OWNERSHIP
7. Each party warrants that they are the holder of the claim subject to
this Agreement, and that said claims have not been alienated, transferred or
assigned, voluntarily or involuntarily, to any person as of the date this
Agreement is executed. In the event that a party shall have assigned or
transferred, or purported to assign or transfer, any claim or other matter
herein released, such party shall indemnify the other party and hold the other
party harmless from and against any loss, cost, claim or expense, including but
not limited to all cost related to the defense of any action including
reasonable attorneys' fees based upon, arising out of, or incurred as a result
of any such claim, assignment, or transfer.
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DISMISSAL/DISCONTINUATION OF LITIGATION
8. Upon receipt of the consideration set forth in paragraph 2 above,
Ripfire hereby agrees to provide Neomedia with a Dismissal with Prejudice. The
parties agree to refrain from commencing, continuing, or participating in any
lawsuit or other proceeding against any other party hereto, including but not
limited to each parties agents, employees, officers, directors, successors and
assigns, based upon the matters described in this Agreement.
CONFIDENTIALITY
9. This Agreement and its terms are deemed to be confidential and each
party agrees that they will not henceforth disclose these terms to anyone other
than their attorney or such auditors or bookkeepers as may be necessary to
report and account properly for the payments provided for herein.
WARRANT OF AUTHORITY
10. Each signatory hereto expressly warrants that they are the duly
authorized principal or agent for the party herein and have full authority to
execute this Agreement.
COSTS
11. The parties shall each bear their own costs, attorneys' fees, and
other fees incurred in connection with the underlying litigation.
ATTORNEYS' FEES
12. If any legal or equitable action is necessary to enforce the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and costs which are reasonably incurred.
ADVICE OF COUNSEL
13. Each party to this Agreement covenants that they have read and
understood this Agreement and have obtained the advice of counsel prior to
signing it.
ENTIRE AGREEMENT
14. This Agreement contains the entire agreement between the parties
hereto. The terms of this Agreement are contractual, not a mere recital. This
Agreement is executed without reliance upon any representation by any person
concerning the nature, extent of injuries, or legal liability therefore, or any
other oral representation of any type or nature, and that the undersigned have
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carefully read and understood the contents of this Agreement and signed this
Agreement voluntarily and without coercion. No contrary or supplementary oral
agreements shall be admissible in a court of law to contradict, alter,
supplement, or otherwise change the meaning of this Agreement.
15. Should any provision of this Agreement be held unenforceable,
invalid, or void, by a court of competent jurisdiction, the remainder of this
Agreement and of such provision shall remain in full force and effect.
COUNTERPARTS
16. This Agreement may be executed in counterparts, each of which will
be deemed an original, but all of which will be deemed to be a single Agreement.
DATED: PLUMTREE SOFTWARE, INC., as
Successor in interest of Ripfire, Inc.
By /s/ Xxxx Xxxxxxx
---------------------------------
General Counsel
DATED: NEOMEDIA TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxxxxx
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President and Chief Operating Officer
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