EXHIBIT
99.1
SETTLEMENT
AGREEMENT AND MUTUAL RELEASE
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 reorga
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