EXHIBIT 10.23
CONFIDENTIAL SETTLEMENT, RELEASE
AND NON-DISCLOSURE AGREEMENT
THIS SETTLEMENT, RELEASE AND NON-DISCLOSURE AGREEMENT (hereinafter
referred to as the "Agreement"), is made and entered into by and among Xxxxxxxx
X. XxXxxx hereinafter referred to as "XxXxxx") and Neomedia. Technologies, Inc.
(hereinafter referred to as "Neomedia").
In consideration of the mutual covenants and promises set forth below and
other good and valuable consideration, it is agreed as follows:
1. This Agreement shall not in any way be construed as an admission by
NEOMEDIA of any unlawful or wrongful acts whatsoever against XxXxxx in
connection with this case.
2. Within three (3) days after execution of this Agreement by both
parties and payment of the initial settlement funds as set forth in Paragraph
3(a) below, XxXxxx will dismiss with prejudice Civil Action No.
2:02-CV-203-FtM-29DNFN with all parties to bear their own fees and costs, and
shall ask that the Court retain jurisdiction to enforce the settlement. XxXxxx
agrees to take all further steps and to execute any other documents which may be
necessary to dismiss promptly such action(s).
a. Within three (3) days after Neomedia receives the original of this
Agreement executed by XxXxxx, Neomedia will deliver to counsel for XxXxxx, one
check payable to Xxxxxx & Xxxxxxxx, P.A. Trust Account in the amount of
$7,500.00. Neomedia shall report this payment on an IRS form 1099. XxXxxx is
responsible for the payment of all taxes, if any, due on this amount and hereby
indemnifies and holds Neomedia harmless from all liability including but not
limited to assessments, fees, costs, penalties, or fines relating to the failure
to withhold and/or pay taxes on this amount.
b. Neomedia shall pay XxXxxx the xxxxx sum of $82,500.00 in equal
semimonthly installments over a ten (10) month period by electronic payroll
transmittal. Payments will be made on Neomedia's normal payroll schedule with
usual payroll deductions, withholdings and contributions made and with the
payments reported on an IRS Form W-2. These payments shall commence November 1,
2002 provided that this Agreement is executed at least ten (10) days before
then, failing which, the payments shall start on the next payroll date which is
at least ten (10) days from the date of execution.
10.23-1
c. Payment of medical expenses by December 1, 2002, for those
expenses incurred through the date Xx. XxXxxx was covered under COBRA with a
hold harmless agreement and assumption of defense for all collections actions
against XxXxxx after December 1, 2002 based on these expenses. Furthermore upon
settlement, Neomedia will send certified letters to the medical providers of its
intent to make payment by December 1, 2002, and that Neomedia will send copies
of the certified letters and return receipts to Xx. XxXxxx by October 15,2002.
d. Conditioned upon XxXxxx'x execution of the consulting agreement
(attached as Exhibit 1), XxXxxx shall be granted 250,000 stock options upon
execution of the Option Agreement attached as Exhibit A.
4. XxXxxx represents that she has not filed any complaints or charges
against Neomedia, its direct or indirect subsidiaries, parent, or related
corporate entities, successors and assigns, employees, officers, directors,
agents and/or shareholders, other than Civil Action No. 2:02-CV-203-FtM-29-DNFN
currently pending in the United States District Court for the Middle District of
Florida, with any local, state or federal court, agency, or board based on
events occurring prior to and including the date of execution of this Agreement.
5. XxXxxx agrees that, except for her consulting assignment reflected in
Exhibit A, she is waiving all rights to employment or re-employment as an
employee, temporary employee, independent contractor, consultant, or in any
other capacity with NEOMEDIA, its past and present direct or indirect
subsidiaries, its parent and related corporate entities.
6. XxXxxx and her heirs, legal representatives, agents, successors in
interest and assigns, hereby irrevocably and unconditionally release, acquit,
forever discharge and agree not to xxx Neomedia, its past and present direct or
indirect subsidiaries, parent, and related corporate entities, past and present
employees, officers, shareholders, directors, plan administrators and
fiduciaries from any and all charges, claims, actions, causes of action, rights,
demands, debts, obligations, damages or accounting of whatever nature including,
but not limited to claims under the Age Discrimination in Employment Act, The
Florida Civil Rights Act, Title VII, The Employee Retirement Income Security
Act, The Americans With Disabilities Act, the Family and Medical Leave Act, and
all other Federal, State, local, common law or employment related laws which she
has or may have based on any events or state of facts, known or unknown,
occurring prior to and including the date of the execution of this Agreement.
10.23-2
7. Neomedia hereby irrevocably and unconditionally releases, acquits,
forever discharges and agrees not to xxx XxXxxx from any and all charges,
claims, actions, causes of action, rights, demands, debts, obligations, damages
or accountings which it has or may have based on any events or state of facts,
known or unknown, occurring prior to and including the date of execution of this
Agreement.
8. XxXxxx agrees that the terms of this Agreement are to remain
confidential and that she and those acting on her behalf have not disclosed, nor
will she or they disclose the terms of this Agreement except 1) as required by
law, 2) as necessary to secure advice from legal or tax advisors and 3) to
immediate family members who agree to maintain the confidentiality of this
Agreement. If asked about this matter, XxXxxx may respond only that "the matter
has been resolved" without further comment. In the event of breach of this
provision of the Agreement XxXxxx agrees that Neomedia shall be entitled to all
available relief in law or equity including injunctive relief and damages in the
amount of $7,500.00 per breach.
9. The parties stipulate that in the event Neomedia breaches its
obligations in paragraph 3(b) of this Agreement by failing to make any payment
due within three (3) business days of its due date, then upon application by
Plaintiff, judgment shall be entered against Neomedia in the amount outstanding
at the time of breach plus an additional 10%. Further, Neomedia shall pay
reasonable attorneys fees and costs for collection and enforcement, in the event
of default in an amount not to exceed $10,000.
10. The parties to this Agreement represent and agree that they have
carefully read and fully understand all the provisions of this Agreement, and
that they are voluntarily entering into this Agreement.
11. All parties hereto affirm that, prior to the execution of this
Agreement, they have consulted with their attorneys concerning the terms and
conditions set forth herein.
12. This Agreement constitutes the final and binding Agreement among the
parties and may not be supplemented or changed without the written consent of
both parties. All prior representations regarding this Agreement are hereby
expressly disclaimed by both parties.
13. Any signatory to this Release personally represents that he/she has
the authority to do so.
14. Should any provision of this Agreement be declared or determined by
any Court to be illegal or invalid, the validity of the remaining parts, terms
or provisions shall not be affected thereby and said illegal or invalid part,
10.23-3
term or provision shall be deemed not to be part of this Settlement Agreement,
Release and Non-Disclosure Agreement.
DATED:November 7, 2002 XXXXXXXX XXXXXX: /s/ Xxxxxxxx XxXxxx
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DATED:November 7, 2002 Printed Name: /s/Xxxxxxx X. Xxxxxx
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On behalf of Defendant
Neomedia Technologies, Inc.
