SETTLEMENT AGREEMENT AND MUTUAL RELEASE
EXHIBIT
99.1
This
Settlement Agreement and Mutual Release (hereinafter the “Agreement”)
is
made as of the 14 day of August, 2007 between WAYSIDE SOLUTIONS, INC.
(“Wayside”),
a
company organized under the laws of Manitoba, Canada, TESSCOURT CAPITAL LTD.,
a
company organized under the laws of Manitoba, Canada (“Tesscourt”)
and
NEOMEDIA TECHONOLOGIES, INC. (“NeoMedia”),
a
Delaware corporation, and on the terms and conditions set forth herein. Wayside,
Tesscourt and NeoMedia may each be referred to herein as a “Party” or
collectively referred to as the “Parties”.
WHEREAS,
NeoMedia and Wayside, entered into a Settlement Agreement, dated December 21,
2004, between Wayside, NeoMedia, BSD SOFTWARE, INC. (“BSD”),
a
Florida corporation, and TRITON GLOBAL BUSINESS SERVICES,
INC. (“Triton”),
a
company organized under the laws of Canada and subsidiary of BSD (the
“Settlement
Agreement”),
pursuant to which NeoMedia agreed to pay USD$789,000 to Wayside in full
settlement of certain amounts owed to Wayside by Triton;
WHEREAS,
NeoMedia’s obligations under the Settlement Agreement were contingent on the
consummation of a contemplated merger between NeoMedia and BSD;
WHEREAS,
the merger between NeoMedia and BSD was consummated on March 21,
2006;
WHEREAS,
on June 15, 2006, NeoMedia agreed to issue and register 3,721,698 shares of
NeoMedia common stock, par value $0.01 per share (the “NeoMedia
Common Stock”)
issued
to Wayside in full satisfaction of its obligations under the Settlement
Agreement (the “June
Agreement”);
WHEREAS,
pursuant to the June Agreement, Wayside instructed NeoMedia to issue such
3,721,698 restricted shares of NeoMedia Common Stock in the name of
Tesscourt;
WHEREAS,
as of the date hereof, NeoMedia has issued 3,721,698 restricted shares of
NeoMedia Common Stock to Tesscourt pursuant to Wayside’s instructions in
satisfaction of its obligations under the Settlement Agreement;
WHEREAS,
the Parties desire to terminate NeoMedia’s obligations under the June Agreement
to register the previous issued 3,721,698 restricted shares of NeoMedia Common
Stock; and
WHEREAS,
the Parties desire to fully and completely settle all remaining obligations
between the Parties under the Settlement Agreement, the June Agreement and
any
other prior agreements and/or arrangements between NeoMedia and Wayside through
the issuance by NeoMedia to Tesscourt, pursuant to Wayside’s instructions, of
additional restricted shares of NeoMedia Common Stock.
The
Parties hereby stipulate and agree as follows:
1. Adoption
of Recitals.
The
Parties adopt the above recitals as being true and correct, and they are
incorporated herein as material parts of this Agreement.
2. Settlement
Amount.
NeoMedia, as payment in full for any and all obligations under the Settlement
Agreement, the June Agreement, and any other prior agreements and/or
arrangements between NeoMedia, Wayside and/or Tesscourt shall issue in the
name
of Tesscourt, pursuant to Wayside’s instructions, additional restricted shares
of NeoMedia Common Stock (such shares, the “Settlement
Amount”),
the
quantity of such additional shares to be issued shall be calculated using the
average closing price of NeoMedia Common Stock for the five (5) trading days
immediately prior to the issuance of the Settlement Amount, divided into
$789,000, less the 3,721,698 restricted shares of NeoMedia Common Stock
previously issued. For example purposes only, if the five (5) trading day
average closing price is $0.03 per share, then $789,000 divided by $0.03 equals
26,300,000, less 3,721,698, which equals 22,578,302 additional shares to be
issued as the Settlement Amount. The Parties acknowledge and agree that
3,721,698 restricted shares of NeoMedia Common Stock have previously been issued
to Tesscourt, pursuant to Wayside’s instructions, by NeoMedia, and that the
remaining restricted shares of NeoMedia common stock shall be payable within
five (5) business days from upon execution and delivery of this Agreement.
The
Parties further acknowledge and agree that any obligations of NeoMedia under
any
prior agreement or arrangement, including, but not limited to, the June
Agreement, to register the 3,721,698 previously issued restricted shares of
NeoMedia Common Stock is hereby terminated.
3. Registration
Rights.
Subject
to the terms and conditions of this Agreement, NeoMedia shall notify Tesscourt
in writing at least ten (10) days prior to the filing of any registration
statement under the Securities Act of 1933, as amended, (the “1933
Act”)
for
purposes of a public offering of securities of NeoMedia (including, but not
limited to, registration statements relating to secondary offerings of
securities of NeoMedia, but excluding any registration statement relating to
any
employee benefit plan or with respect to any corporate reorganization or other
transaction under Rule 145 of the 0000 Xxx) and will afford Tesscourt an
opportunity to include in such registration statement all or part of the
Settlement Amount being issued pursuant to this Agreement held by Tesscourt.
In
the event Tesscourt desires to include in any such registration statement,
all
of part of the Settlement Amount being issued pursuant to this Agreement held
by
it shall, within ten (10) days after the above-described notice from
NeoMedia, so notify NeoMedia in writing. Such notice shall state the intended
method of disposition of the Settlement Amount being issued pursuant to this
Agreement held by Tesscourt. If Tesscourt decides not to include all of the
Settlement Amount being issued pursuant to this Agreement in the registration
statement thereafter filed by NeoMedia, Tesscourt shall nevertheless continue
to
have the right to include any of the Settlement Amount being issued pursuant
to
this Agreement in any subsequent registration statement or registration
statements as may be filed by NeoMedia with respect to offerings of its
securities, all upon the terms and conditions set forth herein.
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4. Full
Satisfaction of Obligations; Acknowledgement of Amounts Owed.
The
Parties hereby acknowledge that the Settlement Amount fully and completely
supersedes and satisfies any and all obligations of the Parties including,
without limitation, under the Settlement Agreement and the June Agreements.
The
Parties further acknowledge and agree that there are no other sums, securities
or benefits due to Wayside and/our Tesscourt by NeoMedia now or in the future
other than as set forth in this Agreement.
5. Mutual
Release.
Each of
Wayside and Tesscourt, on behalf of itself, its successors, heirs, and assigns,
hereby agrees to completely and irrevocably discharge and release NeoMedia
and
its former and current directors, officers, employees, and shareholders from
any
and all liabilities and obligations including, without limitation, under the
Settlement Agreement and the June Agreement, as well as any and all claims,
demands, actions, damages, lawsuits, obligations, promises, administrative
actions, charges and causes of action, and/or liability whatsoever, both known
and unknown, in law or in equity, involving any matter arising out of or in
any
way related, directly or indirectly, to any and all obligations, duties and
liabilities, including, without limitation, under the Settlement Agreement
and
the June Agreement.
6. Mutual
Release.
NeoMedia, on behalf of itself, its successors, heirs, and assigns, hereby agrees
to completely and irrevocably discharge and release Wayside and Tesscourt and
its former and current directors, officers, employees, and shareholders from
any
and all liabilities and obligations including, without limitation, under the
Settlement Agreement and the June Agreement, as well as any and all claims,
demands, actions, damages, lawsuits, obligations, promises, administrative
actions, charges and causes of action, and/or liability whatsoever, both known
and unknown, in law or in equity, involving any matter arising out of or in
any
way related, directly or indirectly, to any and all obligations, duties and
liabilities, including, without limitation, under the Settlement Agreement
and
the June Agreement.
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7. Miscellaneous.
(i) The
Parties warrant that no promise or inducement has been offered except as herein
set forth; and that the undersigned is legally competent to execute this
Agreement and accept full responsibility therefor.
(ii) This
Agreement memorializes and constitutes the entire agreement and understanding
among the Parties. The terms of this Agreement are contractual and not a mere
recital. Each Party acknowledges that no other Party, or any agent or attorney
of any Party, has made any promise, representation or warranty whatsoever,
expressly or impliedly, which is not set forth expressly in the Settlement
Agreement or this Agreement, and no Party is entering into this Agreement in
reliance upon any collateral promise, representation or warranty, or in reliance
upon any belief as to any fact or matter not expressly recited in the Settlement
Agreement or this Agreement.
(iii) Each
Party to this Agreement represents and warrants that they have not heretofor
assigned or transferred or purported to assign or transfer to any person or
entity any matter released herein.
(iv) This
Agreement shall be binding upon and shall inure to the benefit of the Parties,
their respective successors, assigns, alter-egos, agents, attorneys and all
other persons to the extent permitted by law.
(v) The
Parties agree to execute and deliver any and all documents that may be necessary
to effectuate the terms agreed to herein.
(vi) Except
as
provided herein, all covenants, releases, warranties, representations and
indemnities made by the Parties to one another pursuant to this Agreement shall
survive this Agreement and shall be and remain in full force and effect
thereafter.
(vii) Each
of
the signatories to this Agreement represents and warrants that they have the
authority to make the representations, agreements, covenants and warranties
set
forth herein on behalf of the Party which said signatory purports to
represent.
(viii) None
of
the Parties to this Agreement shall be deemed the drafter of this Agreement
for
the purposes of construing the provisions hereof. The language in all parts
of
this Agreement shall be in all cases construed according to its fair meaning,
not strictly for or against any of the Parties hereto.
(ix) This
Agreement shall be governed by and construed under the laws of the State of
Florida and each Party hereby submits to the jurisdiction of the state and
federal courts located in Miami, Florida, and each Party hereby waives any
objection as to forum or venue.
(x) If
any
provisions of this Agreement shall be held invalid or unenforceable by any court
or as a result of future administrative or legislative action, such holding
or
action shall not affect the validity or effect any other provision
hereof.
(xi) This
Agreement shall be effective when fully executed.
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This
Agreement may be signed in counterparts, each of which shall be deemed to be
an
original and all of which taken together shall constitute one and the same
agreement.
NEOMEDIA
TECHNOLOGIES, INC.
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By:
/s/ Xxxxx Xxxxxx
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Name: Xxxxx
Xxxxxx
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Title: Interim CFO |
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Dated this 14 day of August, 2007 |
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WAYSIDE
SOLUTIONS
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By:
/s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx |
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Title: President
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Dated
this 26 day of July, 2007
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TESSCOURT
CAPITAL, LTD.
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By:
/s/ Xxxxx XxXxxxx
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Name:
Xxxxx XxXxxxx
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Title:
President
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Dated
this 26 day of July, 2007
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