Attached files
| file | filename |
|---|---|
| 8-K - NEOMEDIA TECHNOLOGIES INC | v199488_8-k.htm |
| EX-10.2 - NEOMEDIA TECHNOLOGIES INC | v199488_ex10-2.htm |
| EX-99.1 - NEOMEDIA TECHNOLOGIES INC | v199488_ex99-1.htm |
Exhibit
10.1
DATED 19,
October 2010
(1) NEOMEDIA TECHNOLOGIES
INC.
(2) IAIN McCREADY
|
COMPROMISE
AGREEMENT
Without
Prejudice and Subject to Contract
|
THIS AGREEMENT is made the
19th day of October 2010
BETWEEN:
|
(1)
|
NEOMEDIA TECHNOLOGIES
INC., a Delaware corporation whose office is at Two Concourse
Parkway, Suite 500, Atlanta, Georgia USA (the "Company");
and
|
|
(2)
|
IAIN McCREADY of 7 Upper
Coltbridge Terrace, Edinburgh, EH12 6AD United Kingdom (the "Employee")
|
IT IS AGREED as
follows:
|
1.
|
DEFINITIONS
|
|
1.1
|
In
this Agreement and in the accompanying schedules (unless otherwise
stated):
|
|
|
"Certificate"
|
means
the certificate at Schedule 1 of this Agreement to be signed and dated by
the Solicitor;
|
|
|
"Employment"
|
means
the Employee's employment by the Company and/or any Group
Company;
|
|
|
"Employment
Contract"
|
means
the Employment Agreement dated 10 June 2008 between the
Company and the Employee, as
amended;
|
|
|
"Group"
|
means
the Company and any holding or subsidiary company of the Company and any
holding or subsidiary company of such companies (as those terms are
defined in the Companies Act 2006) and any other company which the Company
or any such holding or subsidiary of the Company is a holder of more than
25% of the issued equity share capital (as defined in s.1159 of the
Companies Act 2006);
|
|
|
"Group
Company"
|
means
any member of the Group;
|
|
|
"Solicitor"
|
means
Angus McPherson of Drummond Miller LLP, Moray Place Office, 31/32 Moray
Place, Edinburgh EH3 6BZ;
|
|
|
"Statutory
Claims"
|
means
any claim referred to in the Sex Discrimination Act 1975; the Equal Pay
Act 1970; the Health and Safety at Work Act 1974; the Race Relations Act
1976; the Trade Union and Labour Relations (Consolidation) Act 1992; the
Disability Discrimination Act 1995; the Employment Rights Act 1996; the
National Minimum Wage Act 1998; the Working Time Regulations 1998; the
Public Interest Disclosure Act 1998; the Data Protection Act 1998; the
Trans-national information and Consultation of Employees Regulations 1999;
the Maternity and Parental Leave Regulations 1999; the Part-time Workers
(Prevention of Less Favourable Treatment) Regulations 2000; the Fixed-term
Employees (Prevention of Less Favourable Treatment) Regulations 2002; the
Employment Equality (Religion or Belief) Regulations 2003; the Employment
Equality (Sexual Orientation) Regulations 2003; the Employment Act 2002;
the Employment Act 2002 (Dispute Resolution) Regulations 2004; the
Protection from Harassment Act 1997; the Transfer of Undertakings
(Protection of Employment) Regulations 2006; the Occupational and Personal
Pension Schemes (Consultation by Employers and Miscellaneous Amendment)
Regulations 2006; the Employment Equality (Age) Regulations 2006; the
Equality Act 2010 and any claims from which an employee may
contract out by means of a statutory compromise
agreement;
|
|
"TerminationDate"
|
means
8 October 2010.
|
|
2.
|
TERMINATION OF
EMPLOYMENT
|
|
2.1
|
The
Employment terminated by mutual consent on the Termination Date. All
payments, benefits or entitlements of any nature (whether contractual,
discretionary or otherwise) shall cease on the Termination Date, save as
specified in this Agreement.
|
|
3.
|
RESIGNATION OF
DIRECTORSHIPS
|
|
3.1
|
The
Employee shall forthwith from the Termination Date resign immediately from
his directorships of the Company and the Supervisory Board for NeoMedia
Europe AG by separate letters in the form set out in Schedule 2 to this
Agreement and shall resign immediately from any other office, trusteeship
or position that he holds in or on behalf of the Company or any Group
Company.
|
|
3.2
|
The
Employee irrevocably appoints the Company to be his attorney in his name
and on his behalf to sign, execute or do any such instrument or thing and
generally to use his name in order to give the Company (or its nominee)
the full benefit of the provisions of this clause
3.
|
|
4.
|
ACCRUED SUMS AND
EXPENSES
|
|
4.1
|
The
Company will pay the Employee £6,153.84 for 10 untaken days’ holiday,
accrued up to the Termination Date. Payment will be made through the
Company's payroll on the usual pay day. It will be subject to deductions
for tax and national insurance and the Company has provided the Employee's
contractual benefits up to the Termination
Date.
|
|
4.2
|
The
Company will pay the Employee £76.38 in respect of the
Employee's claimed expenses up to the Termination
Date.
|
|
4.3
|
Given
the Employee was absent from work on grounds of ill health up to the
Termination Date, the Company will pay the Employee £94.98 in respect of 8
days’ accrued sick pay. The Employee agrees this comprises his
full entitlement to outstanding
salary.
|
|
4.4
|
The
Company will pay the Employee a pro-rated sum of £131.08 in respect of a
monthly allowance for the period 1 October - 8 October 2010, less tax and
NIC deductions.
|
|
5.
|
THE EMPLOYEE'S
CLAIMS
|
|
5.1
|
In
the circumstances, the Employee hereby alleges and/or confirms that the
Employee and/or the legal advisers of the Employee that, in addition to
common law and contractual claims, he has or will have the following
statutory claims arising from his Employment and/or its
termination:
|
|
|
(a)
|
the
right not to suffer unauthorised deductions from wages (s3), the right to
a written statement of reasons for dismissal (s92), the right to a
statutory redundancy payment (s35), the right to protection from suffering
a detriment in employment (part V) and the right not to be unfairly
dismissed under part X of the Employment Rights Act
1996;
|
|
|
(b)
|
complaints
in respect of the right to be accompanied or accompanying or seeking to
accompany a colleague under section 12 of the Employment Relations Act
1999;
|
|
|
(c)
|
breaches
of the rights under sections 11, 18, 20(1 )(a) or 24 of the National
Minimum Wage Act 1998;
|
|
|
(d)
|
complaints
under Regulation 30 of the Working Time Regulations
1998;
|
|
|
(e)
|
breach
of the Public Interest Disclosure Act 1998 and section 103A of the
Employment Rights Act 1996;
|
|
|
(f)
|
discrimination,
harassment and victimisation on grounds of age under regulation 36 of the
Employment Equality (Age) Regulations
2006;
|
|
|
(g)
|
any
other claims relating to the Employment or its termination that could be
brought under English law.
|
|
6.
|
WARRANTY IN RELATION TO
STATUTORY CLAIMS
|
|
6.1
|
The
Employee warrants that he has instructed the Solicitor to advise on
whether he has or may have any Statutory Claims against the Company, any
Group Company or any of its or their officers or employees arising out of
or in connection with the Employment or
the termination of the Employment and he has provided the Solicitor with
all relevant information to enable the Solicitor to advise on whether he
has or may have any such Statutory
Claims.
|
|
6.2
|
The
Employee further warrants that, having received the Solicitor's advice, he
has those statutory claims referred to in clause 5 and no other Statutory
Claims against the Company, any Group Company or its or their officers or
employees, and that he is not aware of any facts or circumstances which
may give rise to any other claims against the Company, any Group Company
or any of its or their officers or
employees.
|
|
7.
|
PAYMENTS
|
|
7.1
|
Subject
to the Solicitor providing the Certificate and to the Employee complying
in full with his obligations under this Agreement, the Company will,
without any admission of liability and in reliance and conditional upon
the matters referred to in clauses 5, 6 and 11 pay to the Employee
£33,333.33 as compensation for termination of the Employment (the “Compensation
Sum”).
|
|
7.2
|
Subject
to the conditions referred to in 7.1 being satisfied payment of the sums
referred to in this clause will be made after the Employee's P45 has been
issued and in three equal tranches on the following
dates:
|
|
|
(a)
|
£
11,111.11 to be paid on 31 October
2010;
|
|
|
(b)
|
£
11,111.11 to be paid on 31 November 2010;
and
|
|
|
(c)
|
£
11,111.11 to be paid on 31 December
2010.
|
|
7.3
|
The
Employee will be responsible for the payment of any tax and employees'
national insurance contributions that may become due in respect of the
Compensation Sum over and above the sums deducted by the Company under
clause 7.4. The Employee agrees to indemnify the Company and
any other Group Company and to keep the Company and any other Group
Company indemnified on a continuing basis against all liabilities to
taxation (including any interest, penalties, reasonable costs and
expenses) which the Company and any other Group Company may incur in
respect of the Compensation Sum or other payment or benefit made under the
Agreement including under clause 15.2, save in relation to the sums
deducted by the Company under clause
7.4.
|
|
7.4
|
The
Company gives no warranty as to the tax and national insurance treatment
of any payments or benefits made available to the Employee under this
Agreement, but believes that, in the circumstances of the termination of
the Employment, the first £30,000 of the Compensation Sum may be paid free
of tax pursuant to section 401 of the Income Tax (Earnings and Pensions)
Act 2003 and that no charge to tax arises under section 225 of the Income
Tax (Earnings and Pensions) Act 2003 by virtue of the undertakings given
by the Employee in clause 11 of the Agreement having regard to Inland
Revenue Statement of Practice SP 3/96. The Company will deduct basic rate
tax and NIC deductions due from the balance of the Compensation Sum and
will account to the Revenue for those
deductions.
|
|
8.
|
SHARE
OPTIONS
|
|
8.1
|
The
Employee currently holds options to acquire 509,375 shares of common stock
in the Company which under clause 5.1 of the relevant stock option
agreements will remain exercisable, to the extent vested, for 3 months
following the Termination Date following which they will
lapse. As at the Termination Date, these options will have
vested as to 359,375 shares (the “Vested Options”) and
will be unvested as to 150,000 shares (the “Unvested
Options”). The Company and Employee agree that clause
5.1 of the stock option agreements will be varied so that the Vested
Options shall remain exercisable up to and including the date of the first
anniversary of this agreement, following which they shall lapse. In all
other respects, the Vested Options will continue to be subject to the
Company's 2003 Stock Option Plan and the relevant stock option agreements
including, without limitation, clause 5.6 ("detrimental conduct")
and any provisions that would cause the options to lapse earlier than the
date set out in clause 5.1 (for example on a Change in
Control). For the avoidance of doubt the Unvested Options shall
automatically lapse on the Termination
Date.
|
|
8.2
|
The
Employee will be responsible for the payment of any tax and employees'
national insurance contributions that may become due in respect of any
options exercised under Clause 8.1. The Employee agrees to
indemnify the Company and any other Group Company and to keep the Company
and any other Group Company indemnified on a continuing basis against all
liabilities to taxation (including any interest, penalties, reasonable
costs and expenses) which the Company and any other Group Company may
incur in respect of options exercised under Clause 8.1 or shares acquired
on exercise of those options.
|
|
9.
|
LEGAL
COSTS
|
|
9.1
|
The
Company will make a contribution towards the reasonable legal costs
incurred by the Employee in taking advice on the terms of this Compromise
Agreement, up to a maximum of £500 (plus
VAT).
|
|
9.2
|
Payment
of this sum will be made directly to the Employee's solicitors within 14
days of the Company receiving a copy of an invoice addressed to the
Employee, showing the fees due and marked as being payable by the
Company.
|
|
10.
|
GENERAL
WARRANTIES
|
The
Employee warrants that:
|
10.1
|
he
has not committed any breach of duty (including fiduciary duty) owed to
the Company or any other Group
Company;
|
|
10.2
|
he
has not done or omitted to do anything
which:
|
|
|
(a)
|
had
the Company been aware of it, would have entitled the Company to terminate
his Employment summarily and without compensation (if the Employee had
still been employed); or
|
|
|
(b)
|
had
it been done after the date of this Agreement would be in breach of the
terms of this Agreement;
|
|
10.3
|
he
is not employed or doing any work in any capacity, he is not in
discussions which are likely to lead to employment or engagement in any
capacity and he has not received an offer to do any work, in any
capacity;
|
|
10.4
|
he
is not aware of any grounds on which he may make (or, to the best of his
knowledge, any other employee of the Company or any Group Company is
intending to make) a "protected disclosure" or a "qualifying disclosure"
within the meaning of Part IVA of the Employment Rights Act 1996 in
relation to the Company or any Group Company;
and
|
|
10.5
|
he
is not aware of any circumstances or symptoms that may give rise to a
claim by him against the Company of any Group Company for personal injury
or industrial disease or in respect of accrued pension
rights.
|
|
11.
|
SETTLEMENT
|
|
11.1
|
The
Employee accepts the terms of this Agreement in full and final settlement
of all and any claims, demands, costs and expenses or rights of action of
any kind whether past, present or future and whether contemplated or not
that he has or may have against the Company, or any other Group Company,
or any of its or their respective officers and employees and agents
relating directly or indirectly to the statutory claims alleged in clause
5, his Employment, the Service Agreement, directorship or other office,
the termination of any of them or any other matter, including any common
law, contractual, tortious or Statutory Claims or any claim under European
law as well as any past, present or future claims related to the Incentive
Bonus Compensation or the Sale Bonus schemes as defined in the Employment
Contract or any other bonus, commission, payment or other such entitlement
relating to the Employment and/or any relevant alleged entitlements
arising out of such arrangements whether contractual or non contractual
and/or howsoever agreed and/or any claims related to D & O insurance
coverage which was applied for the Employee from time to
time (but excluding any claim or other right of action which,
if included in this clause 11.1 would render this clause void (whether in
whole or in part).
|
|
11.2
|
The
Employee accepts that the Company is entering into this settlement for the
benefit of itself and, as trustee for each other person referred to in
this clause, other than the
Employee.
|
|
11.3
|
Clause
11.1 shall have effect irrespective of whether or not the Employee is or
could be aware of such claims, costs and expenses or rights of action at
the date of this Agreement and irrespective of whether or not such claims,
costs, expenses or rights of action are in the express contemplation of
the Company and any Group Company or their respective officers, employees
or agents and the Employee at the date of this Agreement (including
claims, costs, expenses or rights of action of which the Employee becomes
aware after the date of this Agreement in whole or in part as a result of
the commencement of new legislation or the development of the common
law).
|
|
11.4
|
The
Employee agrees not to institute or pursue any claim in respect of any
matter referred to in clause 5, any other Statutory Claim or any other
claim referred to in clause 11.1.
|
|
11.5
|
It
is a condition of the payment of any sum under this Agreement that no
proceedings in any Employment Tribunal, High Court, County Court or any
other court of competent jurisdiction or arbitration proceedings have been
or will be brought by the Employee against the Company or any other Group
Company or any of their respective officers or employees or agents (other
than in relation to any accrued pension entitlement or personal injury or
to enforce the terms of this Agreement). If the Employee brings any claim
(without prejudice to any other rights or remedies available to the
Company), the sums under this Agreement shall immediately become repayable
to the Company as a debt together with all costs (including legal fees)
reasonably incurred by the Company in recovering the sums under this
Agreement and/or in relation to any claim so
issued.
|
|
12.
|
CONFIDENTIALITY
|
|
12.1
|
The
Employee reaffirms that he will comply with his ongoing obligations of
confidentiality to the Company and to the other Group Companies after the
Termination Date.
|
|
12.2
|
As
part of his ongoing obligations of confidentiality to the Company the
Employee reaffirms that he will keep confidential and will procure that
his spouse or partner will keep confidential the existence and terms of
this Agreement except for the purposes
of:
|
|
|
(a)
|
obtaining
legal advice in relation to it;
|
|
|
(b)
|
complying
with disclosure obligations to the proper authorities as required by law
including Form 8K and Form 4 to be filed with the US Securities and
Exchange Commission;
|
|
|
(c)
|
making
truthful statements to any actual or prospective employer that his
Employment terminated by agreement with the Company on terms which remain
confidential; and
|
|
|
(d)
|
disclosing
the same to his spouse or partner providing that he imposes upon her a
like condition of confidentiality.
|
|
12.3
|
The
Employee will and will procure that his spouse or partner
will:
|
|
|
(a)
|
refrain
from making any comment to any person about the circumstances, discussions
or negotiations leading to the termination of his Employment with the
Company; and
|
|
|
(b)
|
not
make or publish or cause to be made or published to anyone any disparaging
remarks about the Company or any other Group Company or its or their
respective officers, employees or
agents.
|
|
12.4
|
The
Employee warrants that he has not made any statement or taken any
steps
|
|
|
prior
to the date of this Agreement which would constitute a breach of this
clause 12 if it had occurred after the date of this
Agreement.
|
|
13.
|
POST-TERMINATION
RESTRICTIONS
|
|
13.1
|
The
Employee reaffirms that he remains bound by and will comply with the
express and implied terms of the Employment Contract which are expressed
to take effect on or after the Termination Date, including but not limited
to clause 4 save that the Non-Compete Period referred to in clause
4(a)(iv) of the Employment Contract shall be reduced to 3 months (the
“Reduced Non-Compete
Period”).
|
|
13.2
|
The
Employee agrees that the restrictions contained in clause 4 of the
Employment Contract are reasonable and necessary to protect the legitimate
business interests of the Company and other Group
Companies.
|
|
13.3
|
The
Employee agrees that if he receives any offer of employment or other work,
during the Reduced Non-Compete Period, he will give the person offering
the employment or other work a copy of the Employment
Contract.
|
|
14.
|
REFERENCE
|
|
14.1
|
If
asked to provide a written reference for the Employee the Company will
provide a reference in the terms set out in Schedule 3 subject to any
legal or regulatory obligations owed by the Company from time to time and
to any further information coming to the attention of the Company which it
considers should be included in the reference and to the right of the
Company not to include any statement which is misleading or
false.
|
|
15.
|
RETURN OF COMPANY
PROPERTY
|
|
15.1
|
On
or before the Termination Date the Employee
will:
|
|
|
(a)
|
return
to the Company in good condition all books, documents, papers, discs,
tapes, data (including copies, summaries and extracts, held in any form,
including electronically), material, credit cards, keys, security cards or
other property of or relating to the Company or any other Group Company
and any of their respective clients and suppliers which the Employee has
in his possession or which is under the Employee's
control;
|
|
|
(b)
|
remove
all and any Company or Group Company information, whether this comprises
confidential information or not, or whether it is information belonging to
or obtained from or prepared for the Company or any other Group Company or
any of its or their respective customers, clients, investors or advisers,
both from the Company’s mobile telephone and laptop, it being agreed that
he is entitled to retain ownership of both such devices and that he, on
the date of this Agreement or before provide the Company with an image of
his laptop hard drive; and
|
|
|
(c)
|
hereby
provide a written undertaking that he will immediately return any such
property which subsequently comes into the Employee's possession or
control in the future.
|
|
15.2
|
The
parties agree that in respect of the laptop and mobile phone, no income
tax or national insurance contributions should be payable in respect of
the transfer of ownership, pursuant to Chapter 3 of Part 6 of the Income
tax (Earnings and Pensions) Act 2003. However, the Employee
agrees to indemnify the Company and any other Group Company and to keep
the Company and any other Group Company indemnified on a continuing basis
against all liabilities to taxation (including any interest, penalties,
reasonable costs and expenses) which the Company and any other Group
Company may incur in respect of the transfer of laptop and mobile
phone.
|
|
16.
|
THE CONTRACTS (RIGHTS OF THIRD
PARTIES) ACT 1999
|
|
16.1
|
Pursuant
to the Contract (Rights of Third Parties) Act 1999, s.1(1)(a) and s.1(6)
the Company's officers and employees and each Group Company and their
respective officers and employees are expressly provided with the right to
enforce the waiver given by the Employee pursuant to clause 11 together
with the right to enforce the benefit of all other clauses in this
Agreement conferring rights on third
parties.
|
|
16.2
|
The
consent of a third party shall not be required for the variation or
termination of this Agreement, even if that variation or termination
affects the benefits conferred in this Agreement on that third
party.
|
|
17.
|
STATUTORY
COMPROMISE
|
|
17.1
|
This
Agreement complies with the requirements
of:
|
|
|
(a)
|
the
Sex Discrimination Act 1975;
|
|
|
(b)
|
the
Race Relations Act 1976;
|
|
|
(c)
|
the
Trade Union and Labour Relations (Consolidation) Act
1992;
|
|
|
(d)
|
the
Disability Discrimination Act 1995;
|
|
|
(e)
|
the
Employment Rights Act 1996;
|
|
|
(f)
|
the
National Minimum Wage Act 1998;
|
|
|
(g)
|
the
Working Time Regulations 1998;
|
|
|
(h)
|
the
Public Interest Disclosure Act
1998;
|
|
|
(i)
|
the Trans-national Information and Consultation of Employees
Regulations 1999;
|
|
|
(j)
|
the Part-time
Workers (Prevention of
Less Favourable Treatment) Regulations
2000;
|
|
|
(k)
|
the
Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations
2002;
|
|
|
(l)
|
the
Employment Equality (Sexual Orientation) Regulations
2003;
|
|
|
(m)
|
the
Employment Equality (Religion and Belief) Regulations
2003;
|
|
|
(n)
|
the
Employment Equality (Age) Regulations
2006;
|
|
|
(o)
|
the
Occupational and Personal Pension Schemes (Consultation by
Employers and Miscellaneous Amendment) Regulations
2006;
|
|
|
(p)
|
the
Employment Act 2002; and
|
|
|
(q)
|
the
Equality Act 2010.
|
|
17.2
|
The
Employee repeats the warranties given in clause 6 and confirms that he has
received independent legal advice on the terms and effect of this
Agreement, and in particular its effect on his ability to pursue his
rights before an Employment
Tribunal.
|
|
17.3
|
The
legal advice has been given to the Employee by the
Solicitor.
|
|
17.4
|
The
Solicitor has confirmed to the Employee that there is in force a contract
of insurance or an indemnity provided for members of a profession covering
the risk of a claim against him and/or the firm in respect of loss arising
from his advice to the Employee.
|
|
18.
|
ENTIRE
AGREEMENT
|
|
18.1
|
The
terms of this Agreement contain the entire understanding between the
Employee and the Company and any other Group Company concerning the
termination of the employment and office of the Employee and all related
matters and supersedes and abrogates all (if any) other agreements,
arrangements, representations or undertakings in such respect which shall
be deemed terminated by mutual
consent.
|
|
18.2
|
This
Agreement, whilst marked "Without Prejudice and Subject to Contract" will
be binding upon the parties upon
completion.
|
|
19.
|
GOVERNING LAW AND
JURISDICTION
|
This
Agreement is governed by the law of England and Wales and any dispute between
the parties relating to it is subject to the exclusive jurisdiction of the
courts of England and Wales.
|
Signed
by
|
/s/
Michael W. Zima, CFO & Secretary
|
|
|
Michael
W. Zima
|
||
|
on
behalf of
|
||
|
NEOMEDIA
TECHNOLOGIES INC.
|
||
|
Signed
by
|
/s/
Iain A. McCready
|
|
|
IAIN
McCREADY
|
||
|
in
the presence of:
|
||
|
Name:
|
/s/
Anne Leyland Williams
|
|
|
Address:
|
32
Moray Place
|
|
|
Edinburgh
|
||
|
EH3
6BZ
|
||
|
19
October 2010
|
||