EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this
“Agreement”)
is
dated as of June 1, 2007, between NeoMedia Technologies, Inc. a Delaware
corporation (the “Company”),
and
Xxxxxxx X. Xxxxxxx Xx. (the “Executive”).
1. Employment.
The
Company hereby agrees to employ the Executive, and the Executive hereby agrees
to be employed by the Company, on the terms and conditions set forth
herein.
2. Term.
The
employment of the Executive by the Company as provided herein will commence
on
June 18, 2007 (the “Effective
Date”)
and
terminate as herein provided (such period, the “Employment
Period”).
3. Position,
Duties and Responsibilities.
(a) Position.
Effective as of the Effective Date and throughout the Employment Period, the
Executive hereby agrees to serve, and the Company hereby agrees to employ,
the
Executive, as Chief Executive Officer of the Company, reporting to the Company’s
Board of Directors (the “Board”).
The
Executive shall devote his best efforts and substantially all of his business
time and attention to the performance of services to the Company in his capacity
as an officer thereof and as may reasonably be requested by the Board. The
duties, functions, responsibilities and authority of the Executive, including
those reasonably required by the Board hereunder, shall be those as are
reasonable and customary for a person serving as chief executive officer of
an
enterprise comparable to the Company. Subject to the foregoing, the Company
shall retain full direction and control of the means and methods by which the
Executive performs the above services.
(b) Exclusivity.
Except
with the prior written approval of the Board (which the Board may grant or
withhold in its sole and absolute discretion), the Executive, during the
Employment Period, shall devote substantially all of his working time, attention
and energies to the business of the Company and will not (i) accept any other
employment, (ii) serve on the board of directors or similar body of any other
business entity, or (iii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that is or may be
competitive with, or that might place him in a competing position to, that
of
the Company or any of its affiliates. Notwithstanding the foregoing, the
Executive may continue to engage in those activities listed on Schedule
1
provided
such activities do not unreasonably interfere with the performance by the
Executive of his duties as Chief Executive Officer of the Company.
(c) Conditions
to Employment.
The
Executive has provided the Company with satisfactory proof of the Executive’s
legal right to work in the United States. The Executive is not party to any
contract or agreement, whether oral or in writing, that may preclude him from
rendering services as an employee of the Company hereunder. In connection with,
and as a condition to his employment by the Company, the Executive has executed
and agrees to be bound by that certain Confidential Information and Invention
Assignment Agreement with the Company attached hereto as Exhibit
A.
4. Compensation
and Related Matters.
(a) Salary.
The
Company shall pay the Executive a base salary of $250,000 per year, which shall
be paid to Executive in accordance with the Company’s standard payroll
practices. The Executive’s performance and salary shall be subject to review and
increase consistent with the standard practices of the Company.
(b) Bonus.
The
Executive shall be eligible to receive a quarterly incentive bonus with a target
of $150,000 and a maximum of up to $250,000 each calendar year (the
“Bonus”),
which
amount shall be pro-rated with respect to the remainder of calendar year 2007
by
reference to the number of whole calendar months remaining between the date
hereof and December 31, 2007. The Bonus shall be payable to the Executive in
respect of his services to the Company based on the achievement of Revenue,
Operating Profit, and Operating Metric objectives determined by the Board for
the remainder of 2007, and on the achievement of objectives for subsequent
quarters as determined by the Board and communicated to the Executive in advance
of each such quarter. Notwithstanding the foregoing, the Executive shall be
guaranteed payment of $12,000 of the Bonus for the remainder of 2007 for each
full calendar month (not to exceed six (6) calendar months) that the Executive
is employed by the Company (the “Guaranteed
Bonus Payment”).
Except as provided in the immediately following sentence, for each calendar
quarter, the Bonus shall be payable as soon as practicable following the Board’s
determination in its reasonable judgment that all or any portion of the Bonus
has been earned as a result of the achievement of the related performance
objectives on a pro rata basis for such quarter. The Guaranteed Bonus Payment,
with respect to calendar 2007, will be paid quarterly within fifteen (15) days
after the close of the calendar quarter to which such payment relates; provided,
however, if not previously paid, any accrued Guaranteed Bonus Payment will
be
paid within fifteen (15) days after Executive ceases to be employed by the
Company
(c) Stock
Options.
(i) Initial
Option Grant.
The
Executive shall be granted on the Effective Date, an option to purchase
20,000,000 shares of the Company’s Common Stock (the “Initial
Option”).
The
shares covered by the Initial Option, if immediately exercisable, would
constitute one and one-tenth percent (1.1%) of the outstanding Common Stock
of
the Company on a fully diluted basis as of the date of grant. Except
as
otherwise provided herein, subject to the Executive’s remaining continuously
employed by the Company as of each such date, the Initial Option shall vest
and
become exercisable with respect to twenty-five percent (25%) of the shares
subject to the Initial Option the Initial Option’s date of grant, and shall
become vested in equal monthly installments thereafter, such that the Initial
Option is vested and exercisable with respect to one hundred percent (100%)
of
the shares subject to the Initial Option on the fourth year anniversary of
the
Initial Option’s date of grant.
(ii) Performance
Option Grant.
If, at
the end of the Company’s 2007-2010 fiscal years, the Company has attained its
agreed upon operating plan with respect to revenues and with respect to
operating profit, the Executive shall be granted an option to purchase 5,000,000
shares per year (subject to appropriate capitalization adjustments) of the
Company’s Common Stock (the “Performance
Option”).
The
shares covered by the Performance Option, if immediately exercisable, would
constitute one and one-tenth percent (1.1%) of the outstanding Common Stock
of
the Company on a fully diluted basis as of the date of grant. The
Performance Option shall be granted within two (2) weeks of the Company’s filing
of its Annual Report on Form 10-K for the applicable fiscal year, which shall
include the Company’s annual audited financial statements for such fiscal year.
For performance greater than or equal to 80% of the agreed upon performance
objectives, options shall be granted on a pro rata basis (i.e. 40% of options
for 80% of performance goals). The Performance Option shall be vested and
exercisable as of its date of grant. For the portion of the Performance Option
that relates to the Company’s fiscal 2007 year, the Executive will be granted
5,000,000 options, of which one half (½) shall be based upon the agreed upon
operating plan with respect to revenue and operating profit, and one half (½)
shall be guaranteed if the Executive shall be employed by the Company as of
December 31, 2007.
2
(iii) Miscellaneous.
The
Initial Option and the Performance Options shall be intended to qualify as
“incentive stock options” within the meaning of Section 422(b) of the Internal
Revenue Code of 1986, as amended (the “Code”)
to the
maximum extent permitted under the applicable federal income tax rules and
shall
each have a per share exercise price equal to the fair market value of a share
of the Company’s Common Stock as of the dates they are granted. The Initial
Option and the Performance Option shall be granted under, and subject to the
terms and conditions of, the Company’s 2003 and 2005 Stock Option Plans (or any
successor plan(s) thereto). The specific terms of the Initial Option and the
Performance Option shall be set forth in written stock option agreements between
the Company and the Executive which, except as provided herein, shall be in
the
same form as customarily used by the Company with respect to employee stock
option grants.
(d) Business
Expenses.
The
Company shall reimburse the Executive in connection with the conduct of the
Company’s business upon presentation of sufficient evidence of such expenditures
consistent with the Company’s policies as in place from time to
time.
(e) Other
Benefits.
The
Executive shall be entitled to participate in or receive health, welfare, life
insurance, long-term disability insurance, bonus plan and similar benefits
as
the Company provides generally from time to time to its senior executives,
and
to its employees, generally. Nothing herein is intended, or shall be construed
to require the Company to institute or continue any, or any particular, plan
or
benefits, other than the contractual Bonus program and the contractual stock
option program for the Executive described in Sections 4(b) and (c)
respectively.
(f) Relocation
Expense.
If
determined as necessary by the Company and the Executive for the proper
execution of the Company’s business plan, the Executive will be relocated. If
such relocation is deemed necessary, the Company will pay expenses related
to
the relocation of the Executive including but not limited to (i) professional
moving costs, (ii) storage of household items, (ii) travel, and (iv) temporary
living. In any event, the Company will make available, maintain, and place
the
Executive in charge of its current corporate living quarters or comparable
housing for twenty-four months.
(g) Vacations.
During
the Employment Period, the Executive shall be entitled to four (4) weeks of
paid
vacation each year. The Executive shall also be entitled to all paid holidays
given by the Company to its senior executives. 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 hereunder and (ii) mutually
convenient for the Company and the Executive.
3
(h) Indemnification.
The
Executive, in any capacity on behalf of the Company or any of its subsidiaries
or affiliates, shall be entitled to exculpation, indemnification, and
advancement of expenses to the fullest extent not prohibited by Delaware or
other applicable law. The Executive shall also be entitled to coverage under
each directors’ and officers’ liability insurance policy, if any, maintained by
or on behalf of the Company’s directors and officers. If, not currently
available, The Company will adopt such plan within 90 days of the Executives
start date.
5. Termination.
The
Executive’s employment hereunder shall be terminated, or may be terminated, as
the case may be, under the following circumstances:
(a) Death.
The
Executive’s employment hereunder shall terminate upon his death.
(b) Cause.
The
Company may terminate the Executive’s employment hereunder for “Cause.”
Cause
shall mean (i) Employee’s breach of any of the material terms of this
Agreement and the failure by the Executive to cure or remedy such breach within
thirty (30) days after receipt by the Executive of written notice from the
Board
specifying the breach, (ii) his 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, or (iii) his willful, intentional and material
misconduct in the performance of his duties hereunder, including without
limitation, his willful and intentional failure or refusal to carry out any
proper direction by the Board with respect to the services to be rendered by
him
hereunder or the manner of rendering such services or his habitual neglect
of
his duties as an officer of the Company, which misconduct or neglect, if capable
of cure in the Board’s reasonable judgment, shall continue after receipt of
written notice from the Company, specifying the alleged misconduct.
(c) Employment-At-Will/Termination
for Any Reason.
The
Executive hereby agrees that the Company may dismiss him under this
Section 5 without regard (i) to any general or specific policies (whether
written or oral) of the Company relating to the employment or termination of
its
employees, or (ii) to any statements made to the Executive, whether made orally
or contained in any document, pertaining to the Executive’s relationship with
the Company. Notwithstanding anything to the contrary contained herein, the
Executive’s employment with the Company is not for any specified term and may be
terminated by the Company at any time by delivery of a Notice of Termination,
for any reason, with or without Cause, without liability except with respect
to
the payments provided for by Section 5 below.
(d) Termination
by the Executive for Good Reason.
The
Executive may terminate his employment hereunder for “Good
Reason”.
Good
Reason shall mean (i) any reduction in the amount of the Executive’s base salary
or aggregate incentive compensation opportunities (inclusive of the Bonus)
which
reduction may also occur pursuant to any assignment of performance goals and
corresponding awards which are inconsistent with prior performance goals and
awards, (ii) any significant reduction in the aggregate value of the Executive’s
benefits as such benefits may be increased from time to time (unless such
reduction is pursuant to a general change in benefits applicable to all
similarly situated employees of the Company), (iii) any material breach by
the
Company of this Agreement or other written agreement with the Executive and
the
failure to cure or remedy such breach within thirty (30) days after receipt
by
the Company of written notice from the Executive, or (iv) any of (A) assignment
to the Executive of any duties materially inconsistent with his status as Chief
Executive Officer of the Company, (B) the removal of the Executive from the
office of Chief Executive Officer or (C) a significant adverse change in the
nature or scope of the authorities, powers, functions, responsibilities or
duties attached to the Executive’s position with the Company.
4
(e) Voluntary
Resignation.
The
Executive may voluntarily resign his position and terminate his employment
with
the Company at any time by delivery of a written notice of resignation to the
Company (the “Notice
of Resignation”).
The
Notice of Resignation shall set forth the date such resignation shall become
effective (the “Date
of Resignation”),
which
date shall, in any event, be at least sixty (60) days and no more than ninety
(90) days from the date the Notice of Resignation is delivered to the
Company.
(f) Notice.
Any
termination of the Executive’s employment by the Company or by the Executive for
Good Reason shall be communicated by written Notice of Termination to the
Executive or the Company, as applicable. For purposes of this Agreement, a
“Notice
of Termination”
shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated.
(g) “Date
of Termination”
shall
mean (i) if the Executive’s employment is terminated by his death, the date of
his death and (ii) if the Executive’s employment is terminated pursuant to
subsections (b), (c) (d) or (e) above, the date specified in the Notice of
Termination or Notice of Resignation, as applicable.
(h) Termination
Obligations.
(i) The
Executive hereby acknowledges and agrees that all personal property and
equipment furnished to, or prepared by, the Executive in the course of, or
incident to, his employment, belongs to the Company and shall be promptly
returned to the Company upon termination of the Employment Period. “Personal
Property” includes, without limitation, all books, manuals, records,
reports, notes, contracts, lists, blueprints, and other documents, or materials,
or copies thereof (including computer files), and all other proprietary
information relating to the business of the Company. Following termination,
the
Executive will not retain any written or other tangible material containing
any
proprietary information of the Company.
(ii) Upon
termination of the Employment Period, the Executive shall be deemed to have
resigned from all offices, including his position as a director of the Company
if applicable, then held with the Company or any affiliate.
5
(iii) Upon
termination of the Employment Period, this Agreement shall expire, subject
to
fulfillment by the Executive and the Company of their respective obligations
upon termination provided for herein.
6. Compensation
Upon Termination.
(a) Terminations
other than by the Company Without Cause or by the Executive For Good
Reason.
If the
Executive’s employment shall terminate for any reason other than as a result of
(i) the Company’s termination of the Executive’s employment without Cause
pursuant to Section 5(c) hereof or (ii) the Executive’s termination of his
employment for Good Reason pursuant to Section 5(d) hereof, the Company shall
promptly pay the Executive (i) his salary through the Date of Termination.
(b) Terminations
by the Executive For Good Reason.
If the
Executive terminates his employment for Good Reason pursuant to Section 5(d)
hereof, the Company shall, promptly pay the Executive in a single lump sum
an
amount equal to eighteen (18) months of the salary payable to the Executive
pursuant to and in accordance with Section 4(a) hereof. In addition, in the
event of the Executive’s termination of employment for Good Reason, the Company
shall cause the Initial Option and Performance Options to immediately become
vested and exercisable. Finally, the Company shall also promptly pay to the
Executive the amounts described
in Section 6(a) as
if the
Executive’s employment had terminated for reasons other than by the Executive
for Good Reason.
(c) Termination
by the Company Without Cause.
If the
Company shall terminate the Executive’s employment without Cause pursuant to
Section 5(c) hereof, the Company shall promptly pay the Executive in a single
lump sum an amount equal to eighteen (18) months of the salary payable to the
Executive pursuant to and in accordance with Section 4(a) hereof. In addition,
the Company shall cause one half (½) of any remaining portion of the Unvested
Initial Option to immediately become vested and exercisable.
(d) For
purposes of this Agreement, “Change in Control” shall mean (i) a sale, lease or
other disposition, in one transaction or a series of transactions, of all or
substantially all of the assets of the Company, (ii) a merger or consolidation
in which the Company is not the surviving entity or if the Company is the
surviving entity, as a result of which the shares of the Company’s capital stock
are converted into or exchanged for cash, securities of another entity, or
other
property, unless (in any case) the holders of the Company’s outstanding shares
of Common Stock immediately before the transaction own more than 50% of the
combined voting power of the outstanding securities of the Company immediately
after that transaction, (iii) a reverse merger in which the Company is the
surviving corporation but the shares of the Company’s Common Stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise, (iv)
the
Company’s stockholders approve a plan or proposal to liquidate or dissolve the
Company.
7. Restrictive
Covenants.
(a) Definitions.
6
(i) The
term
“Company”
for
purposes of Section 7 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 Technologies, Inc.’s subsidiaries 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
“Confidential
Information”
shall
include, but not be limited to, (a) Customer lists and Prospective Customer
lists; specific information on Customers and Prospective
Customers (including information on purchasing preferences, credit
information, and pricing), pricing lists (including item and Customer
specific pricing information); names of agents; operations; contractual or
personnel data; trade secrets; license agreements; proprietary purchasing and
sales methods and techniques; pricing methods and strategies; computer software
design and/or improvements; methods of distribution; market feasibility studies;
proposed or existing marketing techniques or plans; future Company business
plans; project files; design systems; information on current and potential
Vendors including, but not limited to, their identity, pricing, and purchasing
information not generally known; personal information about the Company’s
executive officers and directors; and (b) any information that is of value
or
significance to the Company that derives independent economic value, actual
or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, including information not generally known to the
competitors of the Company nor intended by the Company for general
dissemination. Confidential Information shall not include any (1) information
known generally to the public (other than as a result of unauthorized disclosure
by the Executive), (2) information that became available from a third party
source and such source is not bound by a confidentiality agreement, or (3)
any
information not otherwise considered by the Board to be Confidential
Information.
(iii) 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.
(iv) 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.
(v) The
term
“Non-Compete
Period”
shall
mean the Employment Period and the thirty-six (36) months immediately following
termination of the Executive’s employment with the Company for whatever reason.
(vi) 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.
7
(vii) The
term
“Restricted
Area”
shall
include any geographical location anywhere in the world where Executive has
been
assigned to perform services on behalf of Company during the Employment Period
and where the Company, its affiliates or subsidiaries either (a) is engaged
in
business, and (b) has evidenced an intention to engage in business.
(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.
(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.
(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.
During
and after the Employment Period, the Executive shall not, directly or
indirectly, without the prior written consent of the Board, or a person duly
authorized thereby, other than a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by Executive of
the
duties of Executive as an employee of the Company, disclose or use for the
benefit of himself or any other person, corporation, partnership, joint venture,
association, or other business organization, any of the trade secrets or
Confidential Information of the Company. If Executive is legally required to
disclose any Confidential Information, Executive will notify the Company prior
to doing so by providing Company with written notice ten (10) business days
in
advance of the intended or compelled disclosure. Notice shall be provided as
defined in Section 7 below.
8
(f) Need
for Restrictions.
The
Executive acknowledges and agrees that each of the restrictive covenants
contained in this Section 7 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 7(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 this Section 7.
(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
this
Section 7, 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 7 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, the restrictive period shall be tolled during the time that the
Executive is in violation. All the provisions of this Section 7 shall survive
the term of this Agreement and the Executive’s employment with the
Company.
8. Return
of Company Property.
All of
the Company’s products, Customer correspondence, internal memoranda, designs,
sales brochures, training manuals, project files, price lists, Customer and
Vendor lists, prospectus reports, Customer or Vendor information, sales
literature, territory printouts, call books, notebooks, textbooks e-mails and
Internet access, and all other like information or products, including all
copies, duplications, replications and derivatives of such information or
products, acquired by the Executive while in the employ of the Company, whether
prepared by the Executive or coming into the Executive’s possession, shall be
the exclusive property of the Company and shall be returned to the Company
promptly upon the Executive’s separation from the Company. The Executive’s
obligations under this Section 8 shall exist whether or not any of these
materials contain Confidential Information. The Executive shall provide the
Company with a signed certificate evidencing that all such property has been
returned, and that no such property or Confidential Information has been
retained by the Executive in any form.
9
9. Notice.
For the
purposes of this Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered, when transmitted by facsimile with
receipt confirmed, or one day after delivery to an overnight air courier
guaranteeing next day delivery, addressed as follows:
| If to the Executive: |
Xxxxxxx
X. Xxxxxxx, Xx.
0000
Xxxx Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Telephone:
(000) 000-0000
|
||
| With a copy to: |
Gardere
Xxxxx Xxxxxx LLP
0000
Xxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
||
| If to the Company: |
NeoMedia
Technologies, Inc.
0000
Xxxxxx Xxxxxx
Xxxxx
#000
Xxxx
Xxxxx, XX 00000-0000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
||
| With a copy to |
Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP
000
X. Xxxxxxxx Xxx., Xxxxx 0000
Xxxxx,
Xxxxxxx 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
Xxxxxxx X. Xxxxxx
|
or
to
such other address as any party may have furnished to the others in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
10. Severability.
The
invalidity or unenforceability of any provision or provisions 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.
11. Assignment.
This
Agreement may not be assigned by the Executive, but may be assigned by the
Company to any successor to its business and will inure to the benefit and
be
binding upon any such successor.
10
12. Tax
Withholding.
All
amounts payable hereunder (including any non-cash benefits) shall be subject
to
all applicable tax withholdings.
13. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.
14. Headings.
The
headings contained herein are for reference purposes only and shall not in
any
way affect the meaning or interpretation of this Agreement.
15. Choice
of Law.
This
Agreement shall be construed, interpreted and the rights of the parties
determined in accordance with the laws of the State of Florida (without
reference to the choice of law provisions of Florida law).
16. Limitation
on Liabilities.
If
either party is awarded any damages as compensation for any breach or action
related to this Agreement, or any other cause of action based in whole or in
part on any breach of any provision of this Agreement, such damages shall be
limited to contractual damages and shall exclude (i) punitive damages, and
(ii)
consequential and/or incidental damages (e.g.,
lost
profits and other indirect or speculative damages).
17. Entire
Agreement.
This
Agreement contains the entire agreement and understanding between the Company
and the Executive with respect to the employment of the Executive by the Company
as contemplated hereby, and no representations, promises, agreements or
understandings, written or oral, not herein contained shall be of any force
or
effect. This Agreement shall not be changed unless in writing and signed by
both
the Executive and the Board of Directors of the Company.
18. The
Executive’s Acknowledgment.
The
Executive acknowledges (a) that he has consulted with or has had the
opportunity to consult with independent counsel of his own choice concerning
this Agreement and has been advised to do so by the Company, and (b) that
he has read and understands this Agreement, is fully aware of its legal effect,
and has entered into it freely based on his own judgment.
11
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date and year first above
written.
| NEOMEDIA TECHNOLOGIES, INC. | ||
| |
|
|
| /s/ Xxxxxx X. X’Xxxxx | ||
|
Name: Xxxxxx X. X’Xxxxx |
||
| Title: Director | ||
| EXECUTIVE | ||
| /s/ Xxxxxxx X. Xxxxxxx, Xx. | ||
|
Xxxxxxx X. Xxxxxxx, Xx. |
||
12
SCHEDULE
1
|
Company/Group
|
Position
|
|
|
Uniqua
Technologies, Inc.
|
Director
|
|
|
Day
Engineering Services
|
Advisor
|
|
|
Synergy
Networks
|
Board
of Advisors
|
|
|
SalesNet
|
Board
of Advisors
|
|
|
North
Atlanta Airport Committee
|
Board
|
|
|
Republican
Presidential
|
Member
|
|
|
Round-table
|
||
|
National
Local Jr. Golf
|
Founder
and Director
|
|
|
mStyle,
LLC
|
Advisor
|
|
|
mToys,
Inc
|
Advisor
|
13
