SEVERANCE AGREEMENT AND RELEASE
This
Severance Agreement and Release (the "
Agreement ")
is entered into as of this 3
rd day
of June, 2008, by and between NeoMedia Technologies, Inc., a
Delaware corporation (the "
Company ")
and William Hoffman (the "
Executive ").
RECITALS:
WHEREAS, the
Executive has tendered his resignation with the Board of Directors
of the Company on May 29, 2008, a copy of which is attached hereto
as
Exhibit A ;
and
WHEREAS ,
in connection with the Executive’s resignation, the Company
and the Executive have agreed to terminate the Employment Agreement
by and between them dated June 18, 2007 and any subsequent
agreements or modifications of the Employment Agreement (the
"
Employment Agreement ")
and the employment relationship existing thereunder;
and
WHEREAS ,
both Executive and the Company desire to resolve any differences
and/or disputes with respect to Executive's employment and the
resignation thereof.
AGREEMENT:
NOW THEREFORE ,
in consideration of the mutual agreements and covenants set forth
herein, and for such other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Executive and the Company acknowledge and voluntarily agree as
follows:
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1.
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Recitals .
The forgoing recitals are true and correct and are incorporated
herein by this reference.
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2.
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Termination of Employment Agreement .
The Executive and the Company shall terminate the Employment
Agreement as of 5:00 p.m., Eastern Standard Time on May 29, 2008
the (“
Effective Date ”).
As of the Effective Date, all rights of the Executive thereof shall
terminate and all terms of the Employment Agreement shall be of no
further force or effect.
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3.
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Severance Payment .
In consideration of the termination of the Employment Agreement and
the other covenants and agreements set forth herein, the Company
shall pay to the Executive a severance payment equal to One Hundred
Eighty-Seven Thousand Five-Hundred Dollars ($187,500), of which
Ninety-Three Thousand Seven Hundred Fifty Dollars ($93,750) shall
be paid by the Company to the Executive within five (5) business
days from the Effective Date (the “
Initial Payment ”)
and the remainder shall be paid to the Executive in four (4) equal
monthly installments of Twenty-Three Thousand Four Hundred
Thirty-Seven Dollars and Fifty Cents ($23,437.50) commencing on
November 1, 2008 in accordance with the Company's customary payroll
practices. The parties agree and acknowledge that the Executive
shall receive the Initial Payment as a 1099.
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4.
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Benefits .
The Executive shall be entitled to continue to participate in or
receive health, welfare, life insurance, long-term disability
insurance and similar benefits as the Company provides generally
from time to time to its senior executives, and to its employees,
generally, through and until the earlier of (a) the last day of the
month in which the final installment payment is paid in accordance
with Section 3 herein above (the “
Expiration Date ”)
and (b) such date that the Executive obtains employment and becomes
eligible for benefits of such employer. Nothing herein is intended,
or shall be construed to require the Company to institute or
continue any, or any particular, plan or benefits. Furthermore, the
Executive hereby agrees and acknowledges that he shall be obligated
to make all monetary contributions in accordance with each
applicable benefit plan for so long as he continues to participate
in such plans.
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5.
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Options .
In consideration of the termination of the Employment Agreement and
the other covenants and agreements set forth herein, the Executive
shall be granted by the Company on the Effective Date an option to
purchase Ten Million (10,000,000) shares of the Company’s
common stock, par value $0.01 per share, at $0.01 per share (the
“
Options ”)
which all such Options shall vest and become exercisable as of the
Effective Date through the Expiration Date.
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6.
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No Additional Payments .
The Executive and the Company agree that except as provided in
Sections 3, 4 and 5 herein above, the Executive is not entitled to
any additional salary, benefits, compensation or other
consideration of any nature whatsoever.
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7.
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Release by Executive .
Except with respect to the (i) covenants and agreements of the
Company set forth in this Agreement, the Executive, on behalf of
himself, his successors, heirs and assigns, hereby agrees to
completely and irrevocably discharge and release the Company, its
officers, directors, employees, agents, shareholders, affiliate
corporations or entities, predecessors, successors and assigns, and
their officers, directors, employees, agents and shareholders from
any and all claims, demands, actions, damages, lawsuits,
obligations, promises, administrative actions, charges and causes
of action, and/or liability whatsoever, both known or 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 under the Employment Agreement and the termination
of same, including, but not limited to, any claim of wrongful
discharge, breach of contract, and/or employment discrimination in
violation arising out of, under, or in relation to the
Executive’s employment with the Company, the termination of
the Employment Agreement, the Civil Rights Act of 1871, the Labor
Management Relations Act of 1947, the Equal Pay Act of 1963, Title
VII of the Civil Rights Act of 1964, the Occupational Safety and
Health Act of 1970, the Rehabilitation Act of 1973, the Health
Maintenance Organization Act of 1973, the Employee Retirement
Income Security Act of 1974, the Immigration Reform and Control Act
of 1986, the Civil Rights Act of 1991, Executive Orders 11141,
11246 and 11375 and/or any other state, federal or local Fair
Employment Practice law, employment law, or statute.
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| 8. |
Release by Company .
The Company, for itself and its directors, officers, employees,
agents, subsidiaries and affiliated entities, remises, releases,
and forever discharges Executive, his heirs, executors, and
administrators, successors, assigns, agents, counsel and
representatives, of and from all manner of action and actions,
cause and causes of action, suits, debts, sums of money, covenants,
contracts, agreements, claims and demands whatsoever, in law, or in
equity, that Company ever had, now has or may have, for, on, or by
reason of any matter, cause, or thing whatsoever, that may have
arisen by reason of Executive's employment or affiliation with the
Company.
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| 9. |
Non-Competition .
Commencing on the Effective Date through and until the Expiration
Date, the Executive shall not, in the Restricted Area (as defined
below), directly or indirectly, engage in, promote, finance, own,
operate, develop, sell or manage or assist in or carry on in any
business with those companies set forth on
Exhibit B attached
hereto;
provided, however ,
that
Executive
may at any time own securities of any business set forth on Exhibit
B attached hereto whose securities are publicly traded on a
recognized exchange so long as the aggregate holdings of the
Executive in any one such company shall constitute not more than
five percent (5%) of the voting stock of such company. The phrase
“
directly or indirectly ”
used in this Agreement includes the Executive either on his own
account, or as a partner, owner, promoter, joint venturer,
employe
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