EXHIBIT 10.19
SEPARATION AGREEMENT
This Separation Agreement is made this 15th day of May, 2002, between
NEOMEDIA TECHNOLOGIES, INC., having its principal place of business at 0000 0xx
Xxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxx 00000 (hereinafter "NeoMedia"), XXXXXXX X.
XXXXX, individually (hereinafter "Xxxxx"), XXXXX X. XXXX, individually,
(hereinafter "Xxxx"), XXXX X. XXXXXXX, individually (hereinafter "Xxxxxxx") and
XXXXXXX X. XXXXX (hereinafter "Xxxxx"). For purposes of this Agreement, the term
"NEOMEDIA" refers jointly and severally to NeoMedia Technologies, Inc. and,
without limitation, any parent, affiliate, predecessor, successor, subsidiary,
or other related entity and their existing and former officers, directors,
shareholders, employees, or agents (in their individual and representative
capacities).
1. SEPARATION AND SEVERANCE. Xxxxx' employment with NeoMedia is hereby
terminated effective the 31st day of January, 2001. NeoMedia and Xxxxx desire to
terminate the employment relationship in an amicable manner and to resolve any
differences between the parties. NeoMedia has decided to pay Xxxxx an amount
that NeoMedia does not owe Xxxxx in order to resolve any disputes between the
parties. Xxxxx agrees to accept those benefits from NeoMedia and, in exchange,
Xxxxx agrees to give up, waive, abandon, and release any and all claims Xxxxx
may have against NeoMedia and its officers, directors, employees, agents, and
representatives, and their successors in interest. Xxxxx acknowledges that
NeoMedia has advised Xxxxx to consult an attorney prior to executing this
Agreement. As Severance, NeoMedia agrees to pay, and Xxxxx agrees to accept, the
following benefits and other consideration to which Xxxxx is not otherwise
entitled:
a. NeoMedia shall grant to Xxxxx, no later than May 15, 2002,
360,000 registered and vested options in NeoMedia Technologies,
Inc., at $.08, with Xxxxx to have five (5) years from the date
of issuance to exercise the options, and provide evidence of
such issuance and registration to Xxxxx no later than May 31,
2002. Such options shall survive any future business
combinations and successor businesses.
b. NeoMedia shall pay Xxxxx the gross amount of $10,000.00 per
month, for nine (9) months, with the first payment being due
May 20, 2002. Each subsequent payment will be due on the 201h
of the month. NeoMedia will withhold from these payments all
necessary federal, state, or local taxes or other standard
withholdings.
c. NeoMedia shall pay Xxxx, Band, Russell, Collier, Xxxxxxxxx &
Xxxxxx, Chartered, the gross amount of $18,000.00 no later than
July 10, 2002. No amounts shall be withheld from this payment.
Xxxx, Band, Russell, Collier, Xxxxxxxxx & Xxxxxx, Chartered is
solely responsible for any taxes payable for receipt of such
amount and shall receive a Form 1099 in the manner and at the
time required by law.
d. NeoMedia shall pay Xxxx, Band, Russell, Collier, Xxxxxxxxx &
Xxxxxx, Chartered, the gross amount of $19,000.00 no later than
July 25, 0000.Xx amounts shall be withheld from this payment.
Xxxx, Band, Russell, Collier, Xxxxxxxxx & Xxxxxx, Chartered is
solely responsible for any taxes payable for receipt of such
amount and shall receive a Form 1099 in the manner and at the
time required by law.
e. NeoMedia shall pay Xxxx, Band, Russell, Collier, Xxxxxxxxx &
Xxxxxx, Chartered, the gross amount of $8,000.00 no later than
August 25, 2002. No amounts shall be withheld from this
payment. Xxxx, Band, Russell, Collier, Xxxxxxxxx & Xxxxxx,
Chartered is solely responsible for any taxes payable for
receipt of such amount and shall receive a Form 1099 in the
manner and at the time required by law.
f. As a condition precedent to this Agreement, Xxxxx and Xxxx
agree to execute the Continuing Guarantee, attached as Exhibit
"A", in the amount of $40,000 on or before September 15, 2002
if all obligations in paragraphs 1 (a) through 1 (e) have been
satisfied. The guarantee amount shall be automatically reduced
by any amounts subsequently paid to Xxxxx pursuant to this
Agreement. Payment under the continuing guarantee shall be
immediately due to Xxxxx upon any failure by NeoMedia to pay
the amounts due under this Agreement.
g. Other than the payments described in paragraphs 1 (c), 1 (d),
and 1 (e) above, NeoMedia, Fritz, Keil, and Xxxxxxx shall not
be liable for the payment or reimbursement of any attorneys'
fees incurred by Xxxxx whatsoever, including but not limited
to, any fees or costs incurred by Xxxxx as a result of his
association with, or retention of, the firm of Xxxx, Band,
Russell, Collier, Xxxxxxxxx & Xxxxxx, Chartered.
10.19-1
x. Xxxxx understands that the Payment will be given to him if and
only if he executes this Agreement and agrees to release and
waive any and all claims that he may have against NeoMedia,
Fritz, Keil, or Xxxxxxx with respect to Xxxxx'x employment or
termination of employment with NeoMedia.
x. Xxxxx understands that the payments described above shall
constitute the sole financial obligation of NeoMedia, Fritz,
Keil, or Xxxxxxx to Xxxxx under this Agreement.
j. The parties acknowledge and agree: (a) that the transactions
entered into by NeoMedia do not constitute any admission of
liability by NeoMedia, Fritz, Keil, or Xxxxxxx; and (b) that
the settlement of Xxxxx' claims does not constitute an
admission by NeoMedia, Fritz, Keil, or Xxxxxxx of the validity
of any legal or factual contentions by Xxxxx.
2. CONFIDENTIALITY AND NON-DISPARAGEMENT. The parties further
understand and agree that the existence of this Separation Agreement and the
terms and conditions thereof, other than the fact of Xxxxx' termination of
employment, shall be considered confidential, and shall not be disclosed by any
party to this Agreement to any third party or entity except with the prior
written approval of the other party or upon the order of a court of competent
jurisdiction- All parties agree that, at all times, they will refrain from and
will not directly or indirectly solicit, request or engage in any conversation
that would tend to negatively impact any party. All parties agree to instruct
their employees, agents, representatives, shareholders, officers, directors,
independent contractors, and attorneys to refrain from making any disparaging
remarks about the other party. Further, Xxxxx agrees to maintain as confidential
and not to disclose any confidential or proprietary information learned,
obtained, or acquired while employed by NeoMedia. Xxxxx represents that he has
no originals or copies of Company documents, and no other property belonging to
NeoMedia, and Xxxxx represents that he has not provided any Company documents to
others. In the event that he does have any such copies, originals or property,
Xxxxx agrees to return to NeoMedia all originals and copies of Company
documents, and all other property belonging to NeoMedia, including but not
limited to, proprietary or confidential information of NeoMedia in his
possession or control, including any property or information that Xxxxx has
provided to others.
3. MUTUAL RELEASES. The parties hereby mutually release each other,
their past, present, and future agents, representatives, shareholders,
principals, attorneys, affiliates, parent corporations, subsidiaries, officers,
directors, employees, predecessors and successors and heirs, executors and
assigns, from any and all legal, equitable or other claims, counterclaims from
the beginning of the world to the date hereof, which are now known and arise out
of, or which may, can, or shall arise out of, or which have or ever had arisen
out of, or which could have arisen out of, Xxxxx' employment with or separation
from NeoMedia, including, without limitation, any and all claims or
counterclaims for breach of contract, violations of Title VII of Civil Rights
Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act of
1967, the Older Workers Benefit Protection Act, the Americans with Disabilities
Act, the Employee Retirement Income Security Act of 1974, and all amendments
thereto, violations of any other federal, state, local, and/or municipality
whistle-blowing statutes or laws or fair employment statutes or laws, and
violations of any other law, rule, regulation, or ordinance pertaining to
employment, discrimination, wages, hours, or any other terms and conditions of
employment and separation of employment, and any other claims or counterclaims,
which have been, or could have been, asserted by any party hereto in any court,
arbitration, or other forum involving the subject matter of this Release.
Notwithstanding the foregoing, this Release does not apply to: 1) the
obligations imposed by this Separation Agreement; 2) third party claims against
either party.
4. ABATEMENT OF PROCEEDINGS. At the time of execution of this
Agreement, the parties will request that the Court place this case on its
administrative docket, without prejudice to any party, until further notice of
the parties but in any case no later than January 21, 2003. If, on January 21,
2003, Xxxxx has received every payment due him under this Agreement, the case
shall then be dismissed pursuant to this Agreement. If Xxxxx fails to receive
any payment due him, Xxxxx has the specific right to have this case placed back
on the Court's docket. At that time Xxxxx may seek to enforce the settlement
agreement or reinstate his prior case, whichever Xxxxx elects. The abatement of
this matter in no way stops any pre-judgment interest from accruing to which
Xxxxx would be entitled if he obtained a judgment against any of the Defendants.
5. COOPERATION. Xxxxx agrees to cooperate with NeoMedia as a witness in
all matters and provide truthful testimony about which Xxxxx has knowledge,
including any necessary factual support for motions, as a result of Xxxxx'x
position with NeoMedia and in which Xxxxx'x testimony is required by NeoMedia.
NeoMedia will reimburse Xxxxx for any out-of-pocket expenses he incurs while
acting as a witness on behalf of NeoMedia, Goins, however, shall not receive any
10.19-2
additional compensation for his testimony as a witness on behalf of NeoMedia.
This obligation to cooperate and to provide truthful testimony shall include,
without limitation, the duty to provide in person, deposition or affidavit
testimony, and the preparation therefore; and to travel to provide in person
testimony. It shall also apply to and include any litigation, arbitration,
alternative dispute resolution, mediation, or other dispute resolution
proceeding. Should applicable legal or ethical rules bar any portion of such
reasonable compensation, Xxxxx shall nonetheless fulfill these duties to
cooperate and to provide truthful testimony.
6. OPPORTUNITY TO SEEK COUNSEL. The parties represent that they have
had an opportunity to retain legal counsel to represent them in connection with
this matter, that they have consulted with legal counsel and have been advised
of the legal effect and consequences of this Separation Agreement, that they
have entered into this Separation Agreement knowingly, freely and voluntarily,
and that they have not been coerced, forced, harassed, threatened or otherwise
unduly pressured to enter into this Separation Agreement. The parties further
agree that, other than the payments described in paragraphs. 1 (c), 1 (d), and 1
(e) above, each Party will be liable for his or its attorneys fees incurred in
connection with this matter.
7. NO ADMISSIONS. This Separation Agreement is not and shall not in any
way be construed as an admission by either party of any wrongful act or
omission, or any liability due and owing, or any violation of any federal, state
or local law or regulation.
8. FUTURE EMPLOYMENT. Xxxxx agrees not to apply for, seek, or accept
employment with NeoMedia or any affiliated entity at any time in the future.
Should Xxxxx seek employment with NeoMedia in the future and NeoMedia denies his
employment, Xxxxx agrees that such would not constitute retaliation in violation
of any laws.
9. ENTIRE AGREEMENT. This Separation Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes all prior negotiations, agreements and understandings, oral and
written, among the parties hereto with respect to the subject matter hereof.
10. AMENDMENTS AND MODIFICATIONS. This Separation Agreement may not be
amended or modified except in writing signed by all parties, specifically
stating that it is an Amendment to this Agreement.
11. DRAFTING. The parties acknowledge that this Separation Agreement is
a product of joint drafting efforts, and shall not be construed against any one
party as the drafter.
12. GOVERNING LAW. This Separation Agreement, and all of the terms and
conditions hereof, shall be construed and interpreted in accordance with the
laws of the State of Florida.
13. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this agreement shall not affect the other provisions hereto and
this Separation Agreement shall be construed in all respects as though such
invalid or unenforceable provisions were omitted.
14. WAIVER. The waiver by any party hereto of a breach of any provision
of this Separation Agreement shall not operate or be construed as a waiver of
any subsequent breach by any party.
15. BREACH. In the event that a party to this Agreement breaches any
provision herein, the other party may seek redress from the Court. The Court
shall retain jurisdiction to enforce this Agreement while the case remains on
the Administrative docket pending final payment.
16. ATTORNEYS' FEES. In the event that any provision of this Separation
Agreement must be enforced, the prevailing party shall be entitled to all
reasonable attorneys' fees and costs.
17. DUPLICATES. This original Agreement or a duplicate copy of the
original Agreement shall suffice in an action to enforce any of the terms and
conditions herein.
18. COUNTERPARTS. If this Agreement is executed in counterparts, each
counterpart shall be deemed an original and all counterparts so executed shall
constitute one Agreement, binding on all of the parties hereto, not withstanding
that all of the parties are not signatory to the same counterpart.
10.19-3
19. PRESS RELEASE. The parties agree that NeoMedia will draft a press
release regarding Xxxxx'x termination of employment and the resolution of this
lawsuit. Such press release shall be submitted to Xxxxx for review prior to
release, and any reasonable changes requested by Xxxxx shall be made. Should the
parties be unable to agree on the text of the press release, the draft press
release shall be given to counsel for the parties in order to draft a mutually
acceptable press release. In no event shall a press release concerning Xxxxx
and/or this lawsuit be released without the prior approval of Xxxxx.
20. DISMISSALS. Within ten (10) days of final payment being made to
Xxxxx pursuant to this Agreement, Xxxxx shall cause to be dismissed any and all
actions he caused to be instituted against NeoMedia, Xxxxx, Xxxx and Xxxxxxx.
This shall include that case known as XXXXXXX X. XXXXX V. NEOMEDIA TECHNOLOGIES,
INC., XXXXXXX X. XXXXX, XXXXX X. XXXX AND XXXX X. XXXXXXX, Case No. 2001 CA 5813
NC. Until such time as final payment is made to Xxxxx pursuant to this
Agreement, the parties shall request that the Court place this case on the
administrative docket pending settlement. The parties agree to execute any
documents necessary to make such a request of the Court. This provision shall
also include the withdrawal of any charge of discrimination or retaliation filed
by Xxxxx. No action on the charges shall be taken by Xxxxx. Xxxxx represents and
warrants to NeoMedia that, other than the pending actions or charges identified
in this Agreement, he has no other pending charges, complaints, or claims or
actions which he brought against NeoMedia, or any existing or former employee,
agent, or representative of NeoMedia before signing this Agreement. In addition,
Xxxxx represents that he has not assigned to any person or entity any claim or
action he has, or may have, against NeoMedia. Finally, within ten (10) days of
final payment being made to Xxxxx pursuant to this Agreement, Xxxxx shall cause
to be withdrawn any and all liens he may have caused to be filed against any and
all patents held by NeoMedia.
IN WITNESS THEREOF, the parties hereto acknowledge, understand and
agree to this Separation Agreement. The parties understand and intend to be
bound by all of the clauses contained in this document and further certify that
they have received signed copies of this Separation Agreement.
Xxxxxxx X. Xxxxx NeoMedia Technologies, Inc.
/s/ Xxxxxxx X. Xxxxx
------------------------------- By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Its: Chief Financial Officer
--------------------------------
Xxxxxxx X. Xxxxx, as an individual Xxxxx X. Xxxx, as an individual
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxx
-------------------------------- --------------------------------------
Xxxx X. Xxxxxxx, as an individual
/s/ Xxxx X. Xxxxxxx
---------------------------------
10.19-4
CONTINUING GUARANTY
For the purpose of inducing XXXXXXX X. XXXXX, (the "Obligee") to enter
into that certain Separation Agreement dated May 15th, 2002 (the "Separation
Agreement") with NEOMEDIA TECHNOLOGIES, INC., a Florida corporation (the
"Obligor"), XXXXXXX X. XXXXX AND XXXXX X. XXXX (collectively, the "Guarantors")
do hereby jointly and severally unconditionally guaranty to Obligee that the
Obligor will duly and punctually pay and perform the Obligor's obligations and
liabilities under paragraph 1(b) of the Separation Agreement which arise after
September 15, 2002 for the payment of an amount not to exceed $40,000.00 due
Obligee (collectively the "Obligations").
1. The obligations of Guarantors hereunder are independent of the Obligations of
Obligor and a separate action or actions may be brought and prosecuted against
Guarantor whether action is brought against Obligor or whether Obligor may be
joined in any such action or actions.
2. Guarantors waive any right to require Obligee to: (a) proceed against
Obligor, (b) proceed against or exhaust any security held from Obligor; or (c)
pursue any other remedy in Obligee's power whatsoever. Guarantors waive any
defense arising by reason of any disability or other defense of Obligor or by
reason of the cessation from any cause whatsoever of the liability of Obligor,
except the defense of payment, and until all Obligations of Obligor to Obligee
under the Separation Agreement shall have been satisfied and paid in full,
Guarantors shall have no right to subrogation, and waive any night to enforce
any remedy which Obligee now has or may hereafter have against Obligor, and
waives any benefit of, and any right to participate in any security now or
hereafter held by Obligee. Guarantors waive all presentrnents, demands for
performance, notices of nonperformance, protests, notices of dishonor, and
notices of acceptance of this guaranty and of the existence, creation or
incurring of new or additional Obligations. Guarantors covenant to cause Obligor
to maintain and preserve the enforceability of any instruments -now or hereafter
executed in favor of the Obligee, and to take no action of any kind which might
be the basis for a claim that Guarantors have any defense hereunder other than
satisfaction and payment in full of all Obligations of Obligor to Obligee.
Guarantors waive any right or claim of night to cause a marshaling of Obligor's
assets or to require Obligee to proceed against Guarantors in any particular
order. No delay on the part of Obligee in the exercise of any right, power or
privilege under the documentation with Obligor or under this guaranty shall
operate as a waiver of any such privilege, power or right.
3. In addition to all liens upon, and rights of setoff against the monies,
securities or other property of Guarantors given to Obligee by law, Obligee
shall have a lien upon and a night of setoff against all monies, securities and
other property of Guarantors now or hereafter in the possession of or on deposit
with Obligee, whether held in a general or special account of deposit, or for
safekeeping or otherwise; and every Such lien and right of setoff may be
exercised without demand upon or notice to Guarantors. No act or conduct on the
part of the Obligee, or by any neglect to exercise such right of setoff or to
enforce such lien, or by any delay in so doing, shall operate as a waiver of
such right; and every right of setoff and lien shall continue in full force and
effect until such night of setoff or lien is specifically waived or released by
an instrument in writing executed by Obligee.
4. Upon the default of Obligor with respect to any of its Obligations or
liabilities to Obligee, or in case Obligor or Guarantors shall become insolvent
or make an assignment for the benefit of creditors, or if a petition in
bankruptcy or for corporate reorganization or for an arrangement shall be filed
by or against Obligor or Guarantors, or in the event of an appointment of a
receiver for Obligor or Guarantors or their properties, or in the event that a
judgment is obtained or warrant of attachment issued against Obligor or
Guarantors, all or any part of the Obligations and liabilities of the Obligor
and/or Guarantors to Obligee, whether direct or contingent, and of every kind
and description, shall, at the option of the Obligee, become immediately due and
payable and shall be satisfied by Guarantors. If Obligor falls to satisfy any of
its obligations to Obligee, Obligee shall provide notice to Guarantors that
Guarantors are required to satisfy Obligors' outstanding obligations to Obligee.
After receipt of such notice, Guarantors shall have ten (10) days to satisfy
Obligor's outstanding Obligations to Obligee. Such obligation by Guarantors,
however, shall be limited to only those payments Obligor has actually failed to
timely pay to Xxxxx as required under the Separation Agreement, without
acceleration.
5. Guarantors acknowledge that Obligee has been induced by this guaranty to make
the make the Separation Agreement heretofore described, and this guaranty shall,
without further reference or assignment, pass to and may be relied upon and
enforced by, any successor, participant or assignee of Obligee in and to any
liabilities or Obligations of Obligor.
6. This guaranty shall, for all purposes, be governed by and construed in
accordance with, the laws of the State of Florida
7. All of Guarantors' obligations and responsibilities under this Guaranty are
joint and several.
10.19-5
8. This guaranty shall immediately terminate upon the full, or pro rata partial,
satisfaction of the Obligor's payment obligations under the Separation
Agreement, as described in this Guaranty.
9. In the event that any provision of this Continuing Guaranty must be enforced,
the prevailing party shall be entitled to all reasonable attorneys' fees and
costs.
10. Dated effective as of May 15th, 2002.
WITNESSES: GUARANTOR:
Xxxxxxx X. Xxxxx
-----------------------------------
As to Xxxxxxx X. Xxxxx
Xxxxx X. Xxxx
-----------------------------------
As to Xxxxx X. Xxxx
10.19-6
