-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PK7Y1cMmugXoFYntAPVBgV/P544FtW/ilze4q+3tQwW18eE9TSl09xR5qYP0J8Wn ctEQxf13j9icW2eS8btLUA== 0001144204-05-023300.txt : 20050801 0001144204-05-023300.hdr.sgml : 20050801 20050801163418 ACCESSION NUMBER: 0001144204-05-023300 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20050727 ITEM INFORMATION: Entry into a Material Definitive Agreement FILED AS OF DATE: 20050801 DATE AS OF CHANGE: 20050801 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEOMEDIA TECHNOLOGIES INC CENTRAL INDEX KEY: 0001022701 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 363680347 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-21743 FILM NUMBER: 05988786 BUSINESS ADDRESS: STREET 1: 2201 SECOND ST STE 600 STREET 2: STE 600 CITY: FORT MYERS STATE: FL ZIP: 33901 BUSINESS PHONE: 6303554404 MAIL ADDRESS: STREET 1: 2201 SECOND STREET STREET 2: SUITE 600 CITY: FORT MYERS STATE: FL ZIP: 33901 FORMER COMPANY: FORMER CONFORMED NAME: DEVSYS INC DATE OF NAME CHANGE: 19960911 8-K 1 v022692_8k.txt U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported): July 27, 2005 NEOMEDIA TECHNOLOGIES, INC. --------------------------- (Exact Name of Registrant as Specified in its Charter) Delaware 0-21743 36-3680347 -------- ------- ---------- (State or Other Jurisdiction (Commission File Number) (IRS Employer Incorporation) Identification No.) 2201 Second Street, Suite 402, Fort Myers, Florida 33901 -------------- ----- (Address of Principal Executive (Zip Code) Offices) (239) - 337-3434 (Registrant's ------------------------------ Telephone Number, including Area Code) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 8.01. OTHER EVENTS On July 27, 2005, NeoMedia Technologies, Inc. ("NeoMedia) signed a non-binding Letter of Intent (the "LOI") to acquire Mobot(TM), Inc. (www.mobot.com [http://www.mobot.com/]) ("Mobot") of Lexington, Massachusetts, a pioneer and leader in mobile visual search technologies. The LOI calls for NeoMedia to acquire all of the outstanding shares of Mobot in exchange for $3,500,000 cash and $6,500,000 in shares of NeoMedia common stock. On August 1, 2005, NeoMedia issued a press release with respect to the LOI, attached hereto as Exhibit 16.3. ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT Promissory Note On July 28, 2005, NeoMedia lent Mobot the principal amount of $600,000 in the form of an unsecured promissory note (the "Note"). The Note accrues interest at a rate of 6% per annum. The Note will be forgiven upon signing of a definitive purchase agreement for the acquisition of all of the outstanding shares of Mobot by NeoMedia, as contemplated the LOI. In the event the acquisition is not consummated, the Note will become due 90 days after written notice of cancellation of the LOI. In the event the LOI is terminated and the Note is not repaid within 90 days of such cancellation, the Note will convert into shares of Mobot common stock with a value equal to the unpaid principal and accrued interest on the Note. In the event a definitive purchase agreement is not executed by the parties, or the LOI is not terminated, by September 26, 2005, Mobot has the right to demand an additional $200,000 loan from NeoMedia. In the event a definitive purchase agreement is not executed, or the LOI is not terminated, by October 26, 2005, Mobot has the right to demand an additional $200,000 loan from NeoMedia. Both of the additional loans would be in the form of a promissory note subject to the same terms as the Note. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. NeoMedia Technologies, Inc. (Registrant) Date: July 28, 2005 By: /s/ Charles T. Jensen ---------------------------------- Charles T. Jensen, President, Chief Executive Officer and Director 3 EXHIBIT INDEX Exhibit No. Description ----------- ----------- 16.1 Letter of Intent between NeoMedia and Mobot 16.2 Promissory Note Payable by Mobot to NeoMedia 16.3 Press release dated August 1, 2005 4 EX-16.1 2 v022692_ex16-1.txt July 26, 2005 Russell Gocht CEO Mobot, Inc. 49 Waltham Street Lexington, MA 02421 Re: Letter of Intent Dear Russ, NeoMedia Technologies, Inc. ("NEOM" or "Buyer") is pleased to provide you with this outline of terms ("Letter of Intent" or "LOI") to acquire all the outstanding shares of stock of Mobot, Inc. ("Mobot" or "Seller"). 1. Overview. This Letter of Intent is intended to be non-binding on both parties and, upon completion of due diligence by both Buyer and Seller, the transaction described herein is subject to final Board approval by both NEOM and Mobot. However, both parties agree to enter into good faith negotiations and use their best efforts to execute a mutually agreeable, definitive agreement (the "Definitive Purchase Agreement") within ninety (90) days of the date last signed below, unless mutually extended in writing by both parties. a) This Letter of Intent outlines the general terms and conditions for the Buyer to purchase the Seller's business utilizing a combination of both cash and the common stock of the Buyer. It is our intention to combine the technology and personnel strengths of both companies to provide enhanced shareholder value to the combined entity. Additionally, it is the Buyer's intention to maintain the current employees of Mobot in an effort to expedite the advancement and the implementation of both technologies. b) It is also the Buyer's intention to include any executive management merged into the Buyer in its Management Incentive Program and Mobot employees, who become employees of the Buyer, in the Buyer's Employee Stock Option Plan. Employees of Mobot who become employees of the Buyer will be issued stock options upon completion of the merger with a three year vesting schedule and with 25% immediately vested upon issuance. c) The transaction will be structured as a merger that qualifies as a tax-free reorganization, except to the extent of the cash portion of the purchase price. The closing ("Closing") will be hereinafter defined as the date of the consummation of the merger contemplated by the Definitive Purchase Agreement. 2. Purchase Price. The Buyer agrees to purchase all of the outstanding shares of common stock from the Seller through the merger under the following terms: a) The Buyer agrees to purchase from Seller all shares of common stock, assets, patents and trademarks, licenses, the current accounts receivable and bank accounts, all computer software and hardware, customers, furniture, and fixtures related to its business as well as other assets and properties of the Seller which will be identified in the Definitive Purchase Agreement, for a total purchase price of $10,000,000 to be paid as follows: Mobot, Inc. July 26, 2005 Page 2 o $3,500,000 in cash at the closing. o The remainder of the purchase price will be in shares of NEOM common stock at the 10 day VWAP (Volume-Weighted Average Pricing) immediately preceding the signing of the Definitive Purchase Agreement. These shares will have piggyback registration rights where NEOM agrees to place the shares referenced as part of the purchase price in its next registration statement. Additionally, the Buyer agrees that, upon effectiveness of its current S-3 and S-4 registration statements, that it will, within 90 days, file a registration statement that will include shares issued in relation to the Mobot merger. o The Buyer agrees to guarantee to the Seller's shareholders the price of the common shares of the Buyer's stock utilized for the purchase through and until the date of registration of those shares. If, at the date of registration of the Buyer's common stock, the value of the Buyer's stock has declined in value from the value as of the signing of the Definitive Purchase Agreement such that the cash and current market value of the stock is less than $10 million, then the Buyer will make up any difference in cash within five business days from the date of registration. b) The Seller agrees that it will convert all applicable warrants, options and convertibles into shares of common stock prior to the signing of the Definitive Purchase Agreement. 3. Bridge Loan. The Buyer agrees to provide the seller a bridge loan in the amount of $600,000 within twenty-four hours of signing the Letter of Intent. The Promissory Note, evidencing the terms of the bridge loan, is contained in Attachment A. (a) The bridge loan will be forgiven by the Buyer upon the signing of the Definitive Purchase Agreement. (b) In the event the Buyer terminates merger discussions, the bridge loan, plus an annualized interest payment of 6%, must be repaid by the Seller within 90 days from the termination of merger discussions. Discussions will be deemed to have been terminated by the Buyer upon written notification to the Seller. In the event that the bridge loan and interest is not repaid within this 90 day period, then the Buyer's bridge loan and interest will automatically convert into shares of the Seller's common stock. The conversion price will be based on a fully diluted valuation of $10 million for the Seller based on Seller's capitalization as of the date of this LOI. (c) In the event that the Seller terminates merger discussions, then the bridge loan, plus an annualized interest payment of 6%, will automatically convert into shares of the Seller's common stock. The conversion price will be based on a fully diluted valuation of $10 million for the Seller based on Seller's capitalization as of the date of this LOI. Discussions will be deemed to have been terminated by the Seller upon written notification to the Buyer. (d) In the event the Buyer obtains shares of the Seller's stock through either 3(b) or 3(c), then the Buyer agrees to give the Seller its voting proxy except in those instances where the giving of such proxy would violate Buyer's fiduciary duty to its shareholders. Also, such shares will be subject to a right of first refusal in favor of the Seller and further subject to the restriction that the Buyer may not distribute such shares to the Buyer's shareholders or transfer such shares to any competitor of the Seller. Mobot, Inc. July 26, 2005 Page 3 (e) The Seller may, at any time after a one year period of time, or upon the closing of a merger or other acquisition, whichever occurs first, have the right to purchase the shares referenced in either 3(b) or 3(c) from the Buyer or any transferee of the Buyer. The purchase price will be at the last sale price of the Seller's common stock or, in the case of an acquisition, such last sale price or the purchase price paid by the new buyer, whichever is greater. In no event will the re-purchase price of the stock be lower than the share price received in the initial conversion of the bridge loan and interest into the Seller's stock. (f) The Buyer agrees to conclude its due diligence and close the merger within a 60 day period from the signing of the Letter of Intent. If, for any reason, the Buyer is unable to conclude its due diligence or the Closing does not occur within this 60 day period, the Buyer will, at the Seller's request, on the next business day following the 60th day, advance an additional $200,000 bridge loan, at a 6% annualized interest, to the Seller. If the Buyer is still unable to complete its due diligence or the Closing does not occur within 90 days from the signing of the Letter of Intent, then the Buyer will, at the Seller's request, on the next business day following the 90th day, advance an additional $200,000 bridge loan, at a 6% annualized interest, to the Seller. The terms for repayment of one or both of the additional bridge loans plus interest will be as described in 3(a), 3(b) and 3(c) above, and any shares issued on conversion of such bridge loans will be subject to Sections 3(d) and 3(e) above. 4. Definitive Agreements. Both parties agree to use their best efforts to negotiate, execute and deliver a definitive agreement satisfactory to both Seller and Buyer. Following the execution of the Letter of Intent, Buyer's counsel will prepare the initial draft of the Definitive Purchase Agreement containing the terms contained in this LOI and other terms customary for transactions such as the proposed merger. 5. Information and Audit. The Seller will afford, and will cause its accountants, counsel and other representatives to afford, to Buyer and its accountants, counsel, agents and other authorized representatives, and to financial institutions specified by Buyer, a reasonable opportunity to conduct due diligence investigations of the Seller and its business and affairs (subject to the Seller's satisfaction that all such parties are subject to confidentiality obligations at least as strict as those contained in Section 6). Buyer will require that the Company's financial statements for the previous two (2) fiscal years be audited in accordance with U.S. GAAP no more than sixty days following the signing of the Definitive Purchase Agreement. 6. Confidentiality. Buyer agrees to maintain in the strictest confidence and not disclose or permit the disclosure of any information supplied by Seller to Buyer as part of Buyer's due diligence and/or otherwise relating to the business activities of Seller. During the negotiation of a definitive agreement between Buyer and Seller and thereafter in the event that a definitive agreement is not reached and the transaction contemplated by this Letter of Intent is not completed for any reason, Buyer agrees to refrain from using any information gained by Buyer in connection with its due diligence and/or review of Sellers confidential information. 7. Brokers or Finders. The Buyer and Seller represent to each other that there are no other brokers or finders in this transaction and no other broker or finder fees will be paid to any party. 8. Expenses. The parties hereto will bear their respective expenses in connection with preparing for and consummating the transactions contemplated by this Letter of Intent, and in conducting any due diligence investigation contemplated hereunder. Neither the Company nor Seller will be liable to any other party for their expenses, damages or losses, if any, in the event that the Definitive Purchase Agreement is not executed for any reason. Mobot, Inc. July 26, 2005 Page 4 9. Termination. Either party can terminate this Letter of Intent at any time for any reason whatsoever upon delivery of written notice to the other party. 10. Governing Law. Any dispute related to this Letter of Intent, the Definitive Purchase Agreement or related documents will be governed by the laws in the State of Florida. 11. Publicity. Neither party will issue a press release or initiate any publicity, or make or cause to be made any news release or other public announcement, relating to this Letter of Intent or the transactions contemplated hereby without the prior review and approval of the other party. This Letter of Intent will terminate on July 29, 2005, unless mutually extended, if not agreed to and accepted by the Seller before that date. If the foregoing is acceptable, please indicate the same by executing and returning the enclosed counterpart of this Letter of Intent. Regards, Approved this 27th day of July, 2005 /s/ Charles T. Jensen /s/ Russell Gocht - --------------------- ---------------------------------------- Charles T. Jensen Russell Gocht CEO CEO NeoMedia Technologies Mobot, Inc. EX-16.2 3 v022692_ex16-2.txt PROMISSORY NOTE $600,000 July 27, 2005 FOR VALUE RECEIVED, the undersigned, Mobot, Inc., a Delaware corporation (the "Company"), promises to pay NeoMedia Technologies, Inc., a Delaware corporation (the "Lender" and together with the Company, the "Parties" and each a "Party"), at 2201 Second Street, Suite 402, Fort Myers, Florida 33901 or at another address as the Lender shall specify in writing, the principal sum of Six Hundred Thousand Dollars ($600,000.00) plus interest at the annual rate of six percent (6%) of the unpaid balance pursuant to the following terms: Contemporaneously with the execution and delivery of this Note, the Parties are entering into a Letter of Intent ("LOI") whereby the Parties agree that within ninety (90) days following the execution of the LOI the Parties shall execute a mutually agreeable, definitive agreement whereby the Lender shall acquire all of the outstanding shares of stock of the Company (the "Definitive Purchase Agreement"). 1. Maturity. The face amount of this Promissory Note (the "Note") plus any and all interest accrued hereon shall be forgiven on the date of execution of the Definitive Purchase Agreement (the "Closing"). In the event that the Company terminates merger discussions with the Lender, by providing written notice of such termination, then the Note plus any and all interest accrued hereon shall become due and payable within ninety (90) days of such written notice. In the event of such termination, if payment of the Note plus any and all interest accrued is not made within ninety (90) days of such notice, then Lender shall have the right to convert the Note into Conversion Shares (as defined below) in accordance with Section 7 herein. 2. Methods of Payment. This Note may be voluntarily prepaid, without penalty or premium, in whole or in part, at any time and from time to time. Any prepayment must include all accrued interest on the principal being paid through the date of prepayment. 3. Waiver and Consent. To the fullest extent permitted by law and except as otherwise provided herein, the Company waives demand, presentment, protest, notice of dishonor, suit against or joinder of any other person, and all other requirements necessary to charge or hold the Company liable with respect to this Note. 4. Costs, Indemnities and Expenses. In the event of default as described herein, the Company agrees to pay all reasonable fees and costs incurred by the Lender in collecting or securing or attempting to collect or secure this Note, including reasonable attorneys' fees and expenses, whether or not involving litigation, collecting upon any judgments and/or appellate or bankruptcy proceedings. The Company agrees to pay any documentary stamp taxes, intangible taxes or other taxes which may now or hereafter apply to this Note or any payment made in respect of this Note, and the Company agrees to indemnify and hold the Lender harmless from and against any liability, costs, attorneys' fees, penalties, interest or expenses relating to any such taxes, as and when the same may be incurred. 5. Events of Default. Upon an Event of Default (as defined below), the entire principal balance and accrued interest outstanding under this Note, and all other obligations of the Company under this Note, shall be immediately due and payable without any action on the part of the Lender, and the Lender shall be entitled to seek and institute any and all remedies available to it. No remedy conferred under this Note upon the Lender is intended to be exclusive of any other remedy available to the Lender, pursuant to the terms of this Note or otherwise. No single or partial exercise by the Lender of any right, power or remedy hereunder shall preclude any other or further exercise thereof. The failure of the Lender to exercise any right or remedy under this Note or otherwise, or delay in exercising such right or remedy, shall not operate as a waiver thereof. An "Event of Default" shall be deemed to have occurred upon the occurrence of any of the following: (i) the Company should fail for any reason or for no reason to make payment of the outstanding principal balance plus accrued interest pursuant to this Note within the time prescribed herein or the Company fails to satisfy any other obligation or requirement of the Company under this Note; or (ii) any proceedings under any bankruptcy laws of the United States of America or under any insolvency, not disclosed to the Lender, reorganization, receivership, readjustment of debt, dissolution, liquidation or any similar law or statute of any jurisdiction now or hereinafter in effect (whether in law or at equity) is filed by or against the Company or for all or any part of its property. 6. Maximum Interest Rate. In no event shall any agreed to or actual interest charged, reserved or taken by the Lender as consideration for this Note exceed the limits imposed by the laws of the State of Florida. In the event that the interest provisions of this Note shall result at any time or for any reason in an effective rate of interest that exceeds the maximum interest rate permitted by applicable law, then without further agreement or notice the obligation to be fulfilled shall be automatically reduced to such limit and all sums received by the Lender in excess of those lawfully collectible as interest shall be applied against the principal of this Note immediately upon the Lender's receipt thereof, with the same force and effect as though the Company had specifically designated such extra sums to be so applied to principal and the Lender had agreed to accept such extra payment(s) as a premium-free prepayment or prepayments. 7. Right of Conversion. (a) If the Company provides the Lender notice of its intent not to consummate the Definitive Purchase Agreement, and the Note is not paid in full within ninety (90) days of such notice, then the Lender shall have the right, at its sole discretion, to convert any amounts due under this Note, including any remaining principal balance of the Note and any accrued and unpaid interest, into fully-paid and non-assessable shares of the Company's common stock ("Common Stock"). The number of shares to be issued to Lender shall be based on a fully-diluted valuation of the --------------- Company equal to ten million dollars ($10,000,000) (the "Conversion Shares"). No fractional shares of Common Stock ------------------ or scrip representing fractional shares shall be issued upon conversion of this Note. Instead of any fractional shares of Common Stock which would otherwise be issuable upon conversion of this Note, the Company shall pay to the Lender a cash adjustment in respect of such fraction. 2 (b) In order to exercise the conversion right set forth in Section 7(a) above the Lender shall surrender the original Note representing the debt obligation being converted to the Company at its principal office and shall give written notice to the Company at the office stating that the Lender elects to convert the Note in accordance with the notice provisions of Section 16 below. The date when such written notice is received by the Company, together with the original Note representing the debt obligation being converted and all other instruments required by the Company shall be the "Conversion Date." As promptly as practicable after the Conversion Date, the Company shall issue and deliver to the Lender a certificate or certificates for the Conversion Shares. Such conversion shall be deemed to have been effective on the Conversion Date and the Lender shall be deemed to have become the holder of record of the Conversion Shares at such time. (c) In the event the Lender obtains the Conversion Shares, then the Lender agrees to give the Company its voting proxy except in those instances where the Lender feels it is fiduciarily not in the best interests of the Lender's shareholders (d) The Company may, after a period of one (1) year from the Conversion Date, or upon the closing of a merger, whichever occurs first, have the right to re-purchase the Conversion Shares from Lender. The re-purchase price will be the last sale price of the Company's stock or, in the case of an acquisition, the purchase price paid by the new buyer, whichever is greater. In no event will the re-purchase price be lower than the per-share valuation assigned to the Conversion Shares on the Conversion Date. 8. Additional Funding. If, for any reason, Lender is unable to conclude its due diligence and sign the Definitive Purchase Agreement within sixty (60) days from the signing of the LOI, the Lender will, at the Company's request, on the next business day following the 60th day from the signing of the LOI, advance an additional $200,000 bridge loan, at a 6% annualized interest, to the Company. If the Lender is unable to complete its due diligence and sign the Definitive Purchase Agreement within ninety (90) days from the signing of the LOI, then the Lender will, at the Company's request, on the next business day following the 90th day from the signing of the LOI, advance an additional two hundred thousand dollars ($200,000) bridge loan, at a 6% annualized interest, to the Company. The terms for repayment of one or both of the additional loan amounts plus interest will be in accordance with Section 1 hereof. 9. Cancellation of Note. Upon the repayment by the Company of all of its obligations hereunder to the Lender, including, without limitation, the face amount of this Note, plus accrued but unpaid interest, the indebtedness evidenced hereby shall be deemed canceled and paid in full. Except as otherwise required by law or by the provisions of this Note, payments received by the Lender hereunder shall be applied first against expenses and indemnities, next against interest accrued on this Note, and next in reduction of the outstanding principal balance of this Note. 10. Severability. If any provision of this Note is, for any reason, invalid or unenforceable, the remaining provisions of this Note will nevertheless be valid and enforceable and will remain in full force and effect. Any provision of this Note that is held invalid or unenforceable by a court of competent jurisdiction will be deemed modified to the extent necessary to make it valid and enforceable and as so modified will remain in full force and effect. 3 11. Amendment and Waiver. This Note may be amended, or any provision of this Note may be waived, provided that any such amendment or waiver will be binding on a party hereto only if such amendment or waiver is set forth in a writing executed by the parties hereto. The waiver by any such party hereto of a breach of any provision of this Note shall not operate or be construed as a waiver of any other breach. 12. Successors. Except as otherwise provided herein, this Note shall bind and inure to the benefit of and be enforceable by the parties hereto and their permitted successors and assigns. 13. Assignment. This Note shall not be directly or indirectly assignable or delegable by the Company. The Lender may assign this Note as long as such assignment complies with the Securities Act of 1933, as amended. 14. No Strict Construction. The language used in this Note will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party. 15. Further Assurances. Each party hereto will execute all documents and take such other actions as the other party may reasonably request in order to consummate the transactions provided for herein and to accomplish the purposes of this Note. 16. Notices, Consents, etc. Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) trading day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be: If to the Company: Mobot, Inc. The Manhatten Building 49 Waltham St. Lexington, MA 02421-5411 Attention: Russell Gocht --------- Telephone: (617) Facsimilie: (617) If to the Lender: Neomedia Technologies Inc. 2201 2nd Floor - Suite 600 Fort Myers, FL 33901 Attention: Charles T. Jensen --------- Telephone: (239) 337-3434 Facsimile: (239) 337-3668 4 With a copy to: Kirkpatrick & Lockhart Nicholson Graham LLP 201 South Biscayne Blvd. - Suite 2000 Miami, FL 33131-2399 Attention: Clayton E. Parker, Esq. --------- Telephone: (305) 539-3300 Facsimile: (305) 358-7095 or at such other address and/or facsimile number and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three (3) trading days prior to the effectiveness of such change. Written confirmation of receipt (a) given by the recipient of such notice, consent, waiver or other communication, (b) mechanically or electronically generated by the sender's facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (c) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (a), (b) or (c) above, respectively. 17. Remedies, Other Obligations, Breaches and Injunctive Relief. The Lender's remedies provided in this Note shall be cumulative and in addition to all other remedies available to the Lender under this Note, at law or in equity (including a decree of specific performance and/or other injunctive relief), no remedy of the Lender contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein shall limit the Lender's right to pursue actual damages for any failure by the Company to comply with the terms of this Note. Every right and remedy of the Lender under any document executed in connection with this transaction may be exercised from time to time and as often as may be deemed expedient by the Lender. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Lender and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Lender shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, and specific performance without the necessity of showing economic loss and without any bond or other security being required. 18. Governing Law; Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of Florida, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Florida or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Florida. The Parties hereto (i) agreee than any legal suit, action or proceeding arising out of or relating to this Note shall be instituted only in a Federal or state court in Miami-Dade County, Florida, (ii) waive any objection which they may now or hereafter have to the laying of the venue of any such suit, action or proceeding, including, without limitation, any objection based on the assertion that such venue is an incovenient forum and (iii) irrevocably submit to the jurisdiction of such Federal or state court in Miami-Dade County, Florida in any such suit, action or proceeding. The Parties hereto agreee that the mailing of any process in any suit, action or proceeding in accordance with the notice provisions of this Note shall constitute personal service thereof. 5 19. No Inconsistent Agreements. None of the parties hereto will hereafter enter into any agreement, which is inconsistent with the rights granted to the parties in this Note. 20. Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties to this Note and their respective permitted successor and assigns, any rights or remedies under or by reason of this Note. 21. Waiver of Jury Trial. AS A MATERIAL INDUCEMENT FOR THE LENDER TO LOAN TO THE COMPANY THE MONIES HEREUNDER, THE COMPANY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS NOTE AND/OR ANY AND ALL OF THE OTHER DOCUMENTS ASSOCIATED WITH THIS TRANSACTION. 22. Entire Agreement. This Note (including the recitals hereto) sets forth the entire understanding of the parties with respect to the subject matter hereof, and shall not be modified or affected by any offer, proposal, statement or representation, oral or written, made by or for any party in connection with the negotiation of the terms hereof, and may be modified only by instruments signed by all of the parties hereto. IN WITNESS WHEREOF, this Note is executed by the undersigned as of the date hereof. [Signature Page to Follow] 6 IN WITNESS WHEREOF, this Note is executed by the undersigned as of the date hereof. MOBOT, INC. By:/s/ Russell Gocht -------------------- Name: Russell Gocht Title: Chief Executive Officer Agreed and accepted: NEOMEDIA TECHNOLOGIES, INC. By: /s/ Charles T. Jensen --------------------- Name: Charles T. Jensen Title: Chief Executive Officer 7 EX-16.3 4 v022692_ex16-3.txt For Immediate Release - --------------------- Press Contacts: - --------------- Charles T. Jensen Lauren Bigelow David A. Kaminer NeoMedia Technologies, Inc. Mobot, Inc. The Kaminer Group +(239) 337-3434 +(978) 621-2769 +(914) 684-1934 cjensen@neom.com lbigelow@mobot.com dkaminer@kamgrp.com - ---------------- ------------------ ------------------- NeoMedia Signs Letter of Intent to Acquire Mobile Visual Search Pioneer Mobot, Inc. FORT MYERS, Fla., Aug. 1, 2005 - NeoMedia Technologies, Inc. (OTC BB: NEOM), an innovator in wireless services and patented technologies that provide automatic links to Internet-based information, today announced that it has signed a Letter of Intent to acquire Mobot, Inc., of Lexington, Massachusetts, a pioneer in mobile visual and recognition technology. Mobot was founded in 2003 by Russell Gocht, Mobot's CEO, to pursue the application of advances in image processing and the opportunity represented by the rapid adoption of camera phones in the consumer marketplace. Mobot (see www.mobot.com(TM)) has partnered with media companies, including Warner Music Group, JANE magazine, ELLEgirl, and VIBE magazine, and with advertisers, including L'Oreal, Samsung and Saturn, to launch interactive campaigns across wireless carriers that required no changes to existing visual media. Real World to Digital World Connection Like NeoMedia, Mobot connects the real world to the digital world via mobile camera phones. "Mobot empowers consumers," said Mr. Gocht. "With Mobot, they can use the cameras in their mobile phones to take pictures of offline media such as magazines, posters, product packaging and logos. Mobot's visual matching technology identifies the pictures they've taken and connects them directly to relevant information. Mobot is fast and easy for consumers to use, and is proving itself as a powerful new tool for media companies and marketers. "We are excited for the opportunity to become part of NeoMedia," he said, "and believe it will offer us a tremendous opportunity to grow and fulfill our vision." `An Ideal Synergistic Pairing' Charles T. Jensen, NeoMedia's president and CEO, called the proposed acquisition of Mobot "an ideal synergistic pairing that would combine the technological and personnel strengths of both companies." Mr. Jensen said the non-binding LOI set terms for the acquisition of Mobot for an aggregate of cash and NeoMedia stock totaling up to $11 million, including interest-bearing bridge loans to Mobot of up to $1 million. About NeoMedia Technologies, Inc. - --------------------------------- NeoMedia Technologies, Inc. (www.neom.com) is a developer and international marketer of software and patented technologies, including PaperClick(R) (www.PaperClick.com) for Camera Phones(TM)and the PaperClick Mobile Go-Window(TM) which link products, print and physical objects directly to targeted online data. NeoMedia also offers expertise in homeland security and e-authentication applications, and its Systems Integration Group specializes in providing expert-based IT consulting, hardware, and software solutions. About Mobot, Inc. - ----------------- Mobot, Inc. (www.mobot.com) is a leader in visual search and recognition technology designed to make marketing effective and innovative using mobile devices. Launched in 2004 to help companies cultivate rewarding relationships with the world's 1.5 billion mobile phone users, Mobot gives marketers, content providers and carriers the tools to make it easy for any consumer with a mobile device to interact with their environment. This press release contains forward-looking statements within the meaning of section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. With the exception of historical information contained herein, the matters discussed in this press release involve risk and uncertainties. Actual results could differ materially from those expressed in any forward-looking statement. PaperClick is a registered trademark, and PaperClick For Camera Phones and PaperClick Mobile Go-Window are trademarks of NeoMedia Technologies, Inc. AirClic is a trademark of AirClic, Inc. Mobot and Mobot.com are trademarks of Mobot, Inc. Other trademarks are properties of their respective owners. -----END PRIVACY-ENHANCED MESSAGE-----