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Manitoba, Canada, TESSCOURT CAPITAL LTD | NEOMEDIA TECHONOLOGIES, INC | TRITON GLOBAL BUSINESS SERVICES, INC | WAYSIDE SOLUTIONS, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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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 reorganization or other
transaction under Rule 145 of the 1933 Act) 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.
2
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 ob
