Delaware
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0-21743
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36-3680347
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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Two Concourse Parkway, Suite 500, Atlanta, GA
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30328
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(Address of principal executive offices)
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(Zip code)
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Registrant's telephone number, including area code:
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(678) 638-0460
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¨
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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(a)
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Not applicable.
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(b)
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Not applicable.
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(c)
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Not applicable.
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(d)
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Exhibits:
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EXHIBIT
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DESCRIPTION
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LOCATION
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||
Exhibit 10.1
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Agreement, dated May 31, 2011, by and between the Company and YA Global Investments, L.P.
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Provided Herewith
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||
Exhibit 10.2
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Secured Convertible Debenture, No. NEOM-11-5, dated May 31, 2011, issued by the Company to YA Global Investments, L.P.
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Provided Herewith
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||
Exhibit 10.3
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Warrant, No. NEOM-0511, dated May 31, 2011, issued by the Company to YA Global Investments, L.P.
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Provided Herewith
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||
Exhibit 10.4
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Security Agreement, dated July 29, 2008, by and among the Company, each of the Company’s subsidiaries made a party thereto and YA Global Investments, L.P.
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Incorporated by reference to Exhibit 10.3 in the Company’s Current Report on Form 8-K as filed with the SEC on August 4, 2008
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||
Exhibit 10.5
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Patent Security Agreement, dated July 29, 2008, by and among the Company, each of the Company’s subsidiaries made a party thereto and YA Global Investments, L.P.
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Incorporated by reference to Exhibit 10.4 in the Company’s Current Report on Form 8-K as filed with the SEC on August 4, 2008
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||
Exhibit 10.6
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Ratification Agreement, dated May 31, 2011, by and among the Company, each of the Company’s subsidiaries made a party thereto, and YA Global Investments, L.P.
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Provided Herewith
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||
Exhibit 10.7
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Irrevocable Transfer Agent Instructions, dated May 31, 2011, by and among the Company, YA Global Investments, L.P., David Gonzalez, Esq. and WorldWide Stock Transfer, LLC
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Provided Herewith
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Date: June 3, 2011
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NEOMEDIA TECHNOLGIES, INC.
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By:
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/s/ Michael W. Zima
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Name:
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Michael W. Zima
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Its:
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Chief Financial Officer
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|
A.
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Reference is made to certain financing arrangements entered into by and between the Company and certain of its former and/or current subsidiaries (collectively, the “Obligors”) and the Investor, evidenced by, among other things, the documents, instruments, and agreements listed on Exhibit X attached hereto and incorporated herein by reference (collectively, together with all other documents, instruments, and agreements executed in connection therewith or related thereto, the “Existing Financing Documents”).
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|
B.
|
Reference is also made to the Securities Purchase Agreement (the “Securities Purchase Agreement”) dated as of May 27, 2010, between the Company and the Investor pursuant to which the Company has issued and the Investor has purchased the Convertible Debentures and Warrants. All capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Securities Purchase Agreement.
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C.
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The parties desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to the Investor, as provided herein, and the Investor shall purchase (i) a $450,000 secured convertible debenture in the form attached hereto as “Exhibit A” (the “Fifth 2011 Convertible Debenture”, which shall be deemed to be included in the term Convertible Debentures), which shall be convertible into Common Stock (as converted such shares of Common Stock, shall be Conversion Shares), and (ii) warrants substantially in the form attached hereto as “Exhibit B” (the “Fifth 2011 Warrants”, which shall be deemed to be included in the term Warrants and together with this Agreement, the Fifth 2011 Convertible Debenture, the Existing Financing Documents and all other documents, instruments and agreements executed in connection therewith or related thereto, the “Financing Documents”), to acquire up to 1,000,000 additional shares of Common Stock (as exercised, such shares of Common Stock shall be Warrant Shares) which shall be funded on the date hereof (the “Fifth 2011 Closing”) for a total purchase price of $450,000, (the “Fifth 2011 Purchase Price”).
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D.
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In order to induce the Company to issue and the Investor to purchase the Fifth 2011 Convertible Debenture and the Fifth 2011 Warrants, the parties desire to enter into this Agreement.
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1.
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Purchase and Sale of Fifth 2011 Convertible Debenture and Fifth 2011 Warrants.
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2.
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Representations and Warranties of Investor.
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3.
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Representations and Warranties of the Company.
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4.
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Covenants.
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COMPANY:
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||
NEOMEDIA TECHNOLOGIES, INC.
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||
By:
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/s/ Michael W. Zima
|
|
Name: Michael W. Zima
|
||
Title: Chief Financial Officer
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||
INVESTOR:
|
||
YA GLOBAL INVESTMENTS, L.P.
|
||
By: Yorkville Advisors, LLC
|
||
|
its Investment Manager
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By:
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/s/ Gerald Eicke
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|
Name: Gerald Eicke
|
||
Title: Managing Member
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Issuance Date: May 31, 2011
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Original Principal Amount: $450,000
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No. NEOM-11-5
|
|
(1)
|
GENERAL TERMS
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|
(2)
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EVENTS OF DEFAULT.
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If to the Company, to:
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NeoMedia Technologies, Inc.
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Two Concourse Parkway, Suite 500
|
||
Atlanta, GA 30328
|
||
Attention: Chief Executive Officer or Chief Financial Officer
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||
Telephone:
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678-638-0460 (x132)
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|
Facsimile:
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678-638-0466
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|
With a copy to:
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K&L Gates LLP
|
|
200 South Biscayne Boulevard – Suite 3900
|
||
Miami, FL 33131-2399
|
||
Attention:
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Clayton E. Parker, Esq.
|
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Telephone:
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(305) 539-3300
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|
Facsimile:
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(305) 358-7095
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If to the Holder:
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YA Global Investments, LP
|
|
101 Hudson Street, Suite 3700
|
||
Jersey City, NJ 07302
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||
Attention:
|
Mark Angelo
|
|
Telephone:
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(201) 985-8300
|
|
With a copy to:
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David Gonzalez, Esq.
|
|
101 Hudson Street – Suite 3700
|
||
Jersey City, NJ 07302
|
||
Telephone:
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(201) 985-8300
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|
Facsimile:
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(201) 985-8266
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COMPANY:
|
||
NEOMEDIA TECHNOLOGIES, INC.
|
||
By:
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/s/ Michael W. Zima
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|
Name: Michael W. Zima
|
||
Title: Chief Financial Officer
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Warrant No.: NEOM-0511
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Number of Shares:
|
1,000,000
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Warrant Exercise Price:
|
$0.15
|
|
Expiration Date:
|
May 31, 2016
|
If to the Company, to:
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NeoMedia Technologies, Inc.
|
|
Two Concourse Parkway, Suite 500
|
||
Atlanta, GA 30328
|
||
Attention: Chief Executive Officer or Chief Financial Officer
|
||
Telephone:
|
678-638-0460 (x132)
|
|
Facsimile:
|
678-638-0466
|
|
With a copy to:
|
K&L Gates LLP
|
|
200 South Biscayne Boulevard – Suite 3900
|
||
Miami, FL 33131-2399
|
||
Attention:
|
Clayton E. Parker, Esq.
|
|
Telephone:
|
(305) 539-3300
|
|
Facsimile:
|
(305) 358-7095
|
|
If to Holder:
|
YA Global Investments, L.P.
|
|
101 Hudson Street – Suite 3700
|
||
Jersey City, NJ 07302
|
||
Attention:
|
Mark A. Angelo
|
|
Telephone:
|
(201) 985-8300
|
|
Facsimile:
|
(201) 985-8266
|
|
With Copy to:
|
David Gonzalez, Esq.
|
|
101 Hudson Street – Suite 3700
|
||
Jersey City, NJ 07302
|
||
Telephone:
|
(201) 985-8300
|
|
Facsimile:
|
(201) 985-8266
|
NEOMEDIA TECHNOLOGIES, INC.
|
||
By:
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/s/ Michael W. Zima
|
|
Name: Michael W. Zima
|
||
Title: Chief Financial Officer
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1.
|
The Borrower hereby acknowledges and agrees that it is liable to the Lender as follows (all amounts in USD):
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|
a.
|
Owed under the CCP-1 Debenture as of May 31, 2011:
|
Principal
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$ | 5,000,000.00 | ||
Interest
|
2,083,524.37 | |||
Total
|
$ | 7,083,524.37 |
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b.
|
Owed under the CCP-2 Debenture as of May 31, 2011:
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Principal
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$ | 2,500,000.00 | ||
Interest
|
1,042,970.38 | |||
Total
|
$ | 3,542,970.38 |
|
c.
|
Owed under the NEOM-4-1 Debenture as of May 31, 2011:
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Principal
|
$ | 7,458,651.00 | ||
Interest
|
2,056,484.41 | |||
Total
|
$ | 9,515,135.41 |
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d.
|
Owed under the NEOM-1-1 Debenture as of May 31, 2011:
|
Principal
|
$ | 1,775,000.00 | ||
Interest
|
935,449.32 | |||
Total
|
$ | 2,710,449.32 |
|
e.
|
Owed under the NEOM-2008-1 Debenture as of May 31, 2011:
|
Principal
|
$ | 390,000.00 | ||
Interest
|
186,387.50 | |||
Total
|
$ | 576,387.50 |
|
f.
|
Owed under the NEOM-2008-2 Debenture as of May 31, 2011:
|
Principal
|
$ | 500,000.00 | ||
Interest
|
231,458.33 | |||
Total
|
$ | 731,458.33 |
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g.
|
Owed under the NEOM-2008-3 Debenture as of May 31, 2011:
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Principal
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$ | 790,000.00 | ||
Interest
|
361,425.00 | |||
Total
|
$ | 1,151,425.00 |
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h.
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Owed under the NEOM-2008-4 Debenture as of May 31, 2011:
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Principal
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$ | 137,750.00 | ||
Interest
|
60,610.00 | |||
Total
|
$ | 198,360.00 |
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i.
|
Owed under the NEOM-9-1 Debenture as of May 31, 2011:
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Principal
|
$ | 2,325,000.00 | ||
Interest
|
924,776.71 | |||
Total
|
$ | 3,249,776.71 |
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j.
|
Owed under the NEOM-9-2 Debenture as of May 31, 2011:
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Principal
|
$ | 2,325,000.00 | ||
Interest
|
843,624.66 | |||
Total
|
$ | 3,168,624.66 |
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k.
|
Owed under the NEOM-9-4 Debenture as of May 31, 2011:
|
Principal
|
$ | 258,036.80 | ||
Interest
|
104,661.18 | |||
Total
|
$ | 362,697.98 |
|
l.
|
Owed under the NEOM-9-5 Debenture as of May 31, 2011:
|
Principal
|
$ | 715,000.00 | ||
Interest
|
199,103.01 | |||
Total
|
$ | 914,103.01 |
|
m.
|
Owed under the NEOM-9-6 Debenture as of May 31, 2011:
|
Principal
|
$ | 535,000.00 | ||
Interest
|
140,770.96 | |||
Total
|
$ | 675,770.96 |
|
n.
|
Owed under the NEOM-9-7 Debenture as of May 31, 2011:
|
Principal
|
$ | 475,000.00 | ||
Interest
|
119,517.81 | |||
Total
|
$ | 594,517.81 |
|
o.
|
Owed under the NEOM-10-1 Debenture as of May 31, 2011:
|
Principal
|
$ | 2,006,137.04 | ||
Interest
|
284,706.57 | |||
Total
|
$ | 2,290,843.61 |
|
p.
|
Owed under the NEOM-10-2 Debenture as of May 31, 2011:
|
Principal
|
$ | 550,000.00 | ||
Interest
|
61,600.00 | |||
Total
|
$ | 611,600.00 |
|
q.
|
Owed under the NEOM-10-3 Debenture as of May 31, 2011:
|
Principal
|
$ | 475,000.00 | ||
Interest
|
44,636.99 | |||
Total
|
$ | 519,636.99 |
|
r.
|
Owed under the NEOM-10-4 Debenture as of May 31, 2011:
|
Principal
|
$ | 400,000.00 | ||
Interest
|
33,139.73 | |||
Total
|
$ | 433,139.73 |
|
s.
|
Owed under the NEOM-10-5 Debenture as of May 31, 2011:
|
Principal
|
$ | 450,000.00 | ||
Interest
|
28,997.26 | |||
Total
|
$ | 478,997.26 |
|
t.
|
Owed under the NEOM-11-1 Debenture as of May 31, 2011:
|
Principal
|
$ | 450,000.00 | ||
Interest
|
24,509.59 | |||
Total
|
$ | 474,509.59 |
|
u.
|
Owed under the NEOM-11-2 Debenture as of May 31, 2011:
|
Principal
|
$ | 650,000.00 | ||
Interest
|
28,172.60 | |||
Total
|
$ | 678,172.60 |
|
v.
|
Owed under the NEOM-11-3 Debenture as of May 31, 2011:
|
Principal
|
$ | 450,000.00 | ||
Interest
|
14,153.42 | |||
Total
|
$ | 464,153.42 |
|
w.
|
Owed under the NEOM-11-4 Debenture as of May 31, 2011:
|
Principal
|
$ | 450,000.00 | ||
Interest
|
8,457.53 | |||
Total
|
$ | 458,457.53 |
|
x.
|
For all interest accruing from and after May 31, 2011 due under the above-referenced debentures and notes, and for all fees, late charges, redemption premiums, liquidated damages, costs, expenses, and costs of collection (including attorneys’ fees and expenses) and other amounts, heretofore or hereafter accrued or coming due or incurred by the Lender in connection with the protection, preservation, or enforcement of its rights and remedies under the Financing Documents (including, without limitation, the preparation and negotiation of this Agreement).
|
2.
|
The Borrower, for itself and on behalf of any other Obligors, hereby acknowledges and agrees that none of the Obligors have any offsets, defenses, claims, or counterclaims against the Lender, its general partner, and its investment manager, and each of their respective agents, servants, attorneys, advisors, officers, directors, employees, affiliates, partners, members, managers, predecessors, successors, and assigns (singly and collectively, as the “Released Parties”), with respect to the Obligations, the Financing Documents, the transactions set forth or otherwise contemplated in this Agreement, or otherwise, and that if the Obligors now have, or ever did have, any offsets, defenses, claims, or counterclaims against any of the Released Parties, whether known or unknown, at law or in equity, from the beginning of the world through this date and through the time of execution of this Agreement, all of them are hereby expressly WAIVED, and the Obligors each hereby RELEASE each of the Released Parties from any and all liability therefor.
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3.
|
The Borrower:
|
|
a.
|
Hereby ratifies, confirms, and reaffirms all and singular the terms and conditions of the Existing Financing Documents, and acknowledges and agrees that, subject to the terms and conditions of this Agreement, all terms and conditions of the Existing Financing Documents shall remain in full force and effect;
|
|
b.
|
Hereby ratifies, confirms, and reaffirms that (i) the obligations secured by the Financing Documents include, without limitation, the Obligations, and any future modifications, amendments, substitutions, or renewals thereof, (ii) all collateral, whether now existing or hereafter acquired, granted to the Lender pursuant to the Financing Documents, or otherwise, shall secure all of the Obligations until the full, final, and indefeasible payment of the Obligations, and (iii) subject to the provisions of Paragraph 6, below, the occurrence of a default and/or event of default under any Financing Document shall constitute a default and an event of default under all of the Financing Documents, it being the express intent of the Borrower that all of the Obligations be fully cross-collateralized, cross-guaranteed, and cross-defaulted;
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|
c.
|
Has previously granted the Lender security interests in all of its assets, and to confirm the same the Borrower hereby grants the Lender a security interest in all of its assets, whether now existing or hereafter acquired, including, without limitation, all accounts, inventory, goods, equipment, software and computer programs, securities, investment property, financial assets, deposit accounts, chattel paper, electronic chattel paper, instruments, patents, patent applications, copyrights, trademarks, trademark applications, trade names, domain names, documents, letter-of-credit rights, health-care-insurance receivables, supporting obligations, notes secured by real estate, commercial tort claims, and general intangibles including payment intangibles, to secure the Obligations free and clear of all liens and encumbrances;
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|
d.
|
Shall, from and after the execution of this Agreement, execute and deliver to the Lender whatever additional documents, instruments, and agreements that the Lender may require in order to correct any document deficiencies, or to vest or perfect the Financing Documents and the collateral granted therein more securely in the Lender and/or to otherwise give effect to the terms and conditions of this Agreement and/or the Related Documents, and hereby irrevocably authorizes the Lender to file any financing statements (including financing statements with a generic description of the collateral such as “all assets”), and take any other normal and customary steps, the Lender deems necessary to perfect or evidence the Lender’s security interests and liens in any such collateral; and
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|
e.
|
Acknowledges and agrees that this Agreement shall constitute an authenticated record as such term is defined in the Uniform Commercial Code.
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f.
|
In accordance with Section 6.17 of the Security Agreement dated as of July 29, 2008 (the “2008 Security Agreement”) entered into by and between the Borrower and the Lender, and Section 7(f) hereof, hereby grants the Lender a security interest in all of Borrower’s rights arising from, in connection with, or relating to any commercial tort claims listed on Schedule 2 hereto, and all judgments, proceeds, products, and awards related to the foregoing (collectively, the “Tort Claims”). The Borrower acknowledges and agrees that the Tort Claims constitute Pledged Property (as defined in the 2008 Security Agreement) and secure all of the Obligations, including those pursuant to the Fifth 2011 Debenture.
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4.
|
The Lender’s agreements hereunder as contemplated herein shall not be effective unless and until each of the following conditions precedent have been fulfilled, pursuant to documentation in form and substance satisfactory to the Lender in all respects, all as determined by the Lender in its sole and exclusive discretion:
|
|
a.
|
The Lender shall have received such lien searches and other evidence as the Lender may require to confirm that the Lender’s liens and security interests in the collateral pledged by the Obligors remain duly perfected, first priority security interests, subject only to such liens and security interests granted in favor of the Lender;
|
|
b.
|
The Borrower shall have (i) executed and delivered to the Lender all documents, instruments, and agreements required by the Lender in connection with the Fifth 2011 Debenture in a form and substance acceptable to the Lender in all respects; and (ii) satisfied all conditions precedent to the effectiveness thereof in a manner satisfactory to the Lender in all respects;
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|
c.
|
The Obligors shall have paid to the Lender’s investment manager, Yorkville Advisors, LLC, a commitment and structuring fee in the amount of $25,000.00 in good and collected funds in accordance with the closing statement attached hereto as Exhibit “A”;
|
|
d.
|
The Borrower shall have taken any and all actions necessary to perfect and further perfect the Lender’s security interest in the Borrower’s intellectual property, including without limitation, obtaining, executing and/or filing any documents, instruments, or agreements necessary to perfect or vest title to all patents and patent applications set forth in the Financing Documents in the name of the Borrower, and to perfect the Lender’s security interests in all of the Borrower’s intellectual property, including without limitation, patents and patent applications.
|
|
e.
|
All action on the part of the Borrower necessary for the valid execution, delivery and performance by the Borrower of this Agreement shall have been duly and effectively taken and evidence thereof, including, without limitation, an opinion of the Borrower’s counsel, satisfactory to the Lender in all respects shall have been provided to the Lender; and
|
|
f.
|
This Agreement, and all documents, instruments, and agreements required in connection with, related to, or contemplated by this Agreement (collectively, the “Related Documents”), shall be executed and delivered to the Lender by the parties thereto, shall be in full force and effect and shall be form and substance satisfactory to the Lender.
|
5.
|
The Borrower has requested that the Lender make a short-term loan in the original principal amount of $450,000.00 (the “New Loan”) to fund ongoing business operations. Upon the satisfaction of all of the conditions precedent set forth in Paragraph 4 of this Agreement, as determined by the Lender in the Lender’s sole and exclusive discretion, and subject to the terms and conditions of the Fifth 2011 Debenture and the Related Documents, the New Loan shall (a) be made by the Lender in accordance with the terms and conditions of the Fifth 2011 Debenture and the other Financing Documents, (b) constitute a portion of the Obligations, and (c) be secured by all of the collateral granted to the Lender by the Obligors. The Borrower hereby acknowledges and agrees that (x) the New Loan is a single, one time loan, (y) by making the New Loan the Lender is not agreeing to make any further loans in the future, and (z) will be repaid in full on or before July 29, 2012.
|
6.
|
The Lender hereby agrees that from and after the execution of this Agreement, the breach of, or failure to comply with, a provision of the Financing Documents by the Borrower shall not constitute an event of default under the Financing Documents unless and until the Lender declares such breach or failure to comply to be an event of default in a written notice sent to the Borrower by facsimile and at the address set forth in this Agreement by nationally-recognized overnight delivery service (i.e., Federal Express, UPS), provided, however, that (a) such declaration shall be effective upon the delivery of the notice to such overnight delivery service and shall not require proof that the Borrower received the same, and (b) no such declaration or notice shall be required with respect to any breach or default occurring as a result of, or in the nature of, a bankruptcy of the Borrower or any similar insolvency proceeding or action (including, without limitation, any assignment for the benefit of creditors, composition, reorganization, or the like) filed by or against the Borrower, each of which shall be an immediate event of default.
|
7.
|
The Borrower hereby represents, warrants, and covenants to the Lender as follows:
|
|
a.
|
The execution and delivery of this Agreement and the other Financing Documents by the Borrower and the performance by the Borrower of its obligations and agreements under this Agreement and the other Financing Documents are within the authority of the Borrower, have been duly authorized by all necessary corporate proceedings on behalf of the Borrower, and do not and will not contravene any provision of law, statute, rule or regulation to which the Borrower is subject or, if applicable, any charter, other organization papers, by-laws, or any stock provision or any amendment thereof or of any agreement or other instrument binding upon the Borrower.
|
|
b.
|
This Agreement and the other Financing Documents constitute legal, valid, and binding obligations of the Borrower, enforceable in accordance with their respective terms.
|
|
c.
|
No approval or consent of, or filing with, any governmental agency or authority is required to make valid and legally binding the execution, delivery or performance by the Borrower of this Agreement or the other Financing Documents.
|
|
d.
|
The Borrower has performed and complied in all material respects with all terms and conditions herein required to be performed or complied with by the Borrower prior to or at the time hereof, and as of the date hereof, no default or event of default has occurred and is continuing under any of the Financing Documents.
|
|
e.
|
The representations and warranties contained in the Financing Documents were true and correct in all material respects at and as of the date made and are true and correct as of the date hereof, except to the extent of changes resulting from transactions specifically contemplated or specifically permitted by this Agreement and the other Financing Documents, changes which have been disclosed in writing to the Lender on or prior to the date hereof and changes occurring in the ordinary course of business that singly or in the aggregate are not materially adverse, and except to the extent that such representations and warranties relate expressly to an earlier date.
|
|
f.
|
The Borrower currently has no commercial tort claims (as such term is defined in the Uniform Commercial Code) and hereby covenants and agrees that in the event the Borrower shall hereafter hold or acquire a commercial tort claim, the Borrower shall immediately notify the Lender of the particulars of such claim in writing and shall grant to the Lender a security interest therein and in the proceeds thereof, upon such terms and documentation as may be satisfactory to the Lender.
|
|
g.
|
The Borrower has read and understands each of the terms and conditions of this Agreement and the other Financing Documents and that it is entering into this Agreement and the other Financing Documents freely and voluntarily, without duress, after having had an opportunity for consultation with independent counsel of its own selection, and not in reliance upon any representations, warranties, or agreements made by the Lender and not set forth in this Agreement or the other Financing Documents.
|
|
h.
|
The Borrower acknowledges and agrees that nothing contained in this Agreement or the Related Documents shall be deemed to constitute (a) a waiver of any defaults or events of default now existing or hereafter arising, or any events that, but for the passage of time or the giving of notice, would constitute defaults or events of default, (b) an agreement to forbear by the Lender with respect to such defaults or events of default, or (c) except as expressly set forth herein, an amendment, modification, extension, or waiver of any of the terms of the Financing Documents or of any of the Lender’s rights and remedies thereunder.
|
|
i.
|
NeoMedia Migration, Inc. (“Migration”) is a wholly owned subsidiary of the Borrower which has no assets, employees, or operations and which the Borrower intends to dissolve upon completion and filing of Migration’s final tax return. The Borrower hereby covenants and agrees that Migration shall have no assets, employees, or operations going forward and that the Borrower will not transfer, or cause the transfer of, any assets to Migration, or allow or cause Migration to have any employees or business operations hereafter. The Borrower specifically acknowledges and agrees that the Lender is relying upon this provision in determining to enter into this Agreement.
|
|
j.
|
The Borrower shall not, and shall not permit or direct any of the other Obligors to license, transfer, assign, or otherwise divest their interest in their respective assets, including without limitation, patents and patent applications, without the prior written consent of the Lender, which consent may be granted or withheld in the Lender’s sole and exclusive discretion.
|
8.
|
The Borrower shall reimburse the Lender on demand for any and all unreimbursed costs, expenses, and costs of collection (including attorneys’ fees and expenses) heretofore or hereafter incurred by the Lender in connection with the protection, preservation, and enforcement by the Lender of its rights and remedies under the Financing Documents, the Related Documents, and/or this Agreement, including, without limitation, the negotiation and preparation of this Agreement and the Related Documents, and/or any matters related thereto.
|
9.
|
The Borrower and the Lender hereby make the following waiver knowingly, voluntarily, and intentionally, and understand that the other, in entering into this Agreement, is relying on such a waiver: THE BORROWER AND THE LENDER EACH HEREBY IRREVOCABLY WAIVE ANY PRESENT OR FUTURE RIGHT TO A JURY IN ANY TRIAL OF ANY CASE OR CONTROVERSY IN WHICH THE OTHER BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST SUCH PARTY OR IN WHICH SUCH PARTY IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT OF, ANY RELATIONSHIP BETWEEN THE OBLIGORS, OR ANY OTHER PERSON, AND THE LENDER.
|
|
Credit Bidding
|
10.
|
The Borrower hereby acknowledges and agrees, in further consideration for the Lender entering into this Agreement, that the Lender shall be permitted to credit bid the Obligations at any auction and/or other sale, including without limitation, at any auction and/or other sale or disposition conducted under or in connection with any of the sections or chapters of the Bankruptcy Code, 11 U.S.C. §101 et seq. (the “Bankruptcy Code”). The Borrower hereby acknowledges and agrees that this provision is a material inducement to the Lender entering into this Agreement. The Lender, in turn, acknowledges that this paragraph shall not be construed as a restriction or prohibition on any Borrower’s right to file any voluntary petition or make application for or seek relief or protection under the Bankruptcy Code. The Borrower acknowledges and agrees that the agreements as set forth in this Paragraph shall survive expiration and/or termination of this Agreement.
|
11.
|
The Borrower agrees that any legal action, proceeding, case, or controversy against the Borrower with respect to the Financing Documents or this Agreement may be brought in the state court or the United States District Court having jurisdiction in Jersey City, New Jersey (each a “Court”), as the Lender may elect in the Lender’s sole discretion. By execution and delivery of this Agreement, the Borrower, for itself, and in respect of its property, accepts, submits, and consents generally and unconditionally, to the jurisdiction of the aforesaid courts. The Borrower further hereby:
|
|
a.
|
WAIVES personal service of any and all process upon it, and irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by certified mail, postage prepaid, to the Borrower at its addresses as specified herein, such service to become effective five (5) days after such mailing.
|
|
b.
|
WAIVES any objection based on forum non conveniens and any objection to venue of any action or proceeding instituted under the Financing Documents or this Agreement and consents to the granting of such legal or equitable remedy as is deemed appropriate by a Court.
|
|
c.
|
Agrees that any action or proceeding commenced by the Borrower asserting any claim arising under or in connection with the Financing Documents or this Agreement shall be brought solely in a state court or the United States District Court having jurisdiction in Jersey City, New Jersey, and that such Courts shall have exclusive jurisdiction with respect to any such action instituted by the Borrower.
|
|
d.
|
Agrees that any voluntary petition or application filed by the Borrower seeking relief or protection under the Bankruptcy Code shall be filed in a United States Bankruptcy Court for the District of Florida, a United States Bankruptcy Court for the District of Georgia, or a United States Bankruptcy Court for the District of Nevada, and that if the Borrower files a petition or application for relief in any other jurisdiction, the Lender shall have the right, in its sole and exclusive discretion, to transfer any such proceeding to one of the foregoing courts that has jurisdiction over the Borrower under the Bankruptcy Code.
|
|
e.
|
Agree that nothing herein shall affect the right of the Lender to bring legal actions or proceedings in any other competent jurisdiction.
|
|
Non-Interference
|
12.
|
From and after the date hereof, the Borrower agrees:
|
|
a.
|
Not to interfere with the exercise by the Lender of any of its rights and remedies under this Agreement, the Related Documents, the Financing Documents, and/or applicable law;
|
|
b.
|
The Borrower shall not seek to distrain or otherwise hinder, delay, or impair the Lender’s efforts to realize upon any collateral or otherwise to enforce its rights and remedies pursuant to this Agreement, the Related Documents, the Financing Documents, and/or applicable law, and shall at all times cooperate with the Lender’s exercise of its rights and remedies under this Agreement, the Related Documents, the Financing Documents, and/or applicable law; and
|
|
c.
|
The provisions of this Paragraph shall be specifically enforceable by the Lender.
|
13.
|
This Agreement shall be binding upon the Borrower and the Borrower’s employees, representatives, successors, and assigns, and shall inure to the benefit of the Lender and the Lender’s successors and assigns. This Agreement and the other Financing Documents incorporate all of the discussions and negotiations between the Borrower and the Lender, either express or implied, concerning the matters included herein and in such other documents, instruments, and agreements, any statute, custom, or usage to the contrary notwithstanding. No such discussions or negotiations shall limit, modify, or otherwise affect the provisions hereof. No modification, amendment, or waiver of any provision of this Agreement, or any provision of any other document, instrument, or agreement between the Obligors, or any one of them, and the Lender shall be effective unless executed in writing by the party to be charged with such modification, amendment, or waiver, and if such party be the Lender, then by a duly authorized representative thereof.
|
14.
|
In connection with the interpretation of this Agreement and the other Financing Documents:
|
|
a.
|
All rights and obligations hereunder and thereunder, including matters of construction, validity, and performance, shall be governed by and construed in accordance with the law of the State of New Jersey and are intended to take effect as sealed instruments.
|
|
b.
|
The captions of this Agreement are for convenience purposes only, and shall not be used in construing the intent of the Lender and the Borrower under this Agreement.
|
|
c.
|
In the event of any inconsistency between the provisions of this Agreement and any other document, instrument, or agreement entered into by and between the Lender and the Borrower, the provisions of this Agreement shall govern and control.
|
|
d.
|
The Lender and the Borrower have prepared this Agreement and the other Financing Documents with the aid and assistance of their respective counsel. Accordingly, all of them shall be deemed to have been drafted jointly by the Lender and the Borrower and shall not be construed against either the Lender or the Borrower.
|
15.
|
Any determination that any provision or application of this Agreement is invalid, illegal, or unenforceable in any respect, or in any instance, shall not affect the validity, legality, or enforceability of any such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement.
|
16.
|
This Agreement may be executed in multiple identical counterparts (including by facsimile or e-mail transmission of an adobe file format document (also known as a PDF file)), each of which when duly executed shall be deemed an original, and all of which shall be construed together as one agreement. This Agreement will not be binding on or constitute evidence of a contract between the parties hereto until such time as a counterpart has been executed by such party and a copy thereof is delivered to each other party to this Agreement.
|
YA GLOBAL INVESTMENTS, L.P.,
|
NEOMEDIA TECHNOLOGIES, INC.
|
|||
f/k/a Cornell Capital Partners, LP
|
||||
By: Yorkville Advisors, LLC,
|
||||
its Investment Manager
|
||||
By:
|
/s/ Gerald Eicke
|
By:
|
/s/ Michael W. Zima
|
|
Name:
|
Gerald Eicke
|
Name:
|
Michael W. Zima
|
|
Title:
|
Managing Member
|
Title:
|
CFO
|
|
1.
|
Secured Convertible Debenture dated August 23, 2006 issued by the Borrower to the Lender in the original principal amount of $5,000,000.00 (hereinafter, as amended and in effect, the “CCP-1 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. CCP-1 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
2.
|
Secured Convertible Debenture dated December 29, 2006 issued by the Borrower to the Lender in the original principal amount of $2,500,000.00 (hereinafter, as amended and in effect, the “CCP-2 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. CCP-2 dated as of January 5, 2010 by and between the Borrower and the Lender;
|
|
3.
|
Secured Convertible Debenture dated March 27, 2007 issued by the Borrower to the Lender in the original principal amount of $7,458,651.00 (hereinafter, as amended and in effect, the “NEOM-4-1 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-4-1 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
4.
|
Secured Convertible Debenture dated August 24, 2007 issued by the Borrower to the Lender in the original principal amount of $1,775,000.00 (hereinafter, as amended and in effect, the “NEOM-1-1 Debenture”), as amended by that certain letter agreement dated as of August 14, 2009, and as further amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-1-1 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
5.
|
Secured Convertible Debenture dated April 11, 2008 issued by the Borrower to the Lender in the original principal amount of $390,000.00 (hereinafter, as amended and in effect, the “NEOM-2008-1 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-2008-1 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
6.
|
Secured Convertible Debenture dated May 16, 2008 issued by the Borrower to the Lender in the original principal amount of $500,000.00 (hereinafter, as amended and in effect, the “NEOM-2008-2 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-2008-2 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
7.
|
Secured Convertible Debenture dated May 29, 2008 issued by the Borrower to the Lender in the original principal amount of $790,000.00 (hereinafter, as amended and in effect, the “NEOM-2008-3 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-2008-3 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
8.
|
Secured Convertible Debenture dated July 10, 2008 issued by the Borrower to the Lender in the original principal amount of $137,750.00 (hereinafter, as amended and in effect, the “NEOM-2008-4 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-2008-4 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
9.
|
Secured Convertible Debenture dated July 29, 2008 issued by the Borrower to the Lender in the original principal amount of $2,325,000.00 (hereinafter, as amended and in effect, the “NEOM-9-1 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-9-1 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
10.
|
Secured Convertible Debenture dated October 28, 2008 issued by the Borrower to the Lender in the original principal amount of $2,325,000.00 (hereinafter, as amended and in effect, the “NEOM-9-2 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-9-2 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
11.
|
Secured Convertible Debenture dated May 1, 2009 issued by the Borrower to the Lender in the original principal amount of $550,000.00 (hereinafter, as amended and in effect, the “NEOM-9-4 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-9-4 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
12.
|
Secured Convertible Debenture dated June 5, 2009 issued by the Borrower to the Lender in the original principal amount of $715,000.00 (hereinafter, as amended and in effect, the “NEOM-9-5 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-9-5 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
13.
|
Secured Convertible Debenture dated July 15, 2009 issued by the Borrower to the Lender in the original principal amount of $535,000.00 (hereinafter, as amended and in effect, the “NEOM-9-6 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-9-6 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
14.
|
Secured Convertible Debenture dated August 14, 2009 issued by the Borrower to the Lender in the original principal amount of $475,000.00 (hereinafter, as amended and in effect, the “NEOM-9-7 Debenture”), as amended by that certain Amendment to NeoMedia Technologies, Inc. Secured Convertible Debenture No. NEOM-9-7 dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
15.
|
Secured Convertible Debenture dated May 27, 2010 issued by the Borrower to the Lender in the original principal amount of $2,006,137.04 (hereinafter, as amended and in effect, the “NEOM-10-1 Debenture”)
|
|
16.
|
Secured Convertible Debenture dated August 13, 2010 issued by the Borrower to the Lender in the original principal amount of $550,000.00 (hereinafter, as amended and in effect, the “NEOM-10-2 Debenture”);
|
|
17.
|
Secured Convertible Debenture dated September 29, 2010 issued by the Borrower to the Lender in the original principal amount of $475,000.00 (hereinafter, as amended and in effect, the “NEOM-10-3 Debenture”);
|
|
18.
|
Secured Convertible Debenture dated October 28, 2010 issued by the Borrower to the Lender in the original principal amount of $400,000.00 (hereinafter, as amended and in effect, the “NEOM-10-4 Debenture”),
|
|
19.
|
Secured Convertible Debenture dated December 15, 2010 issued by the Borrower to the Lender in the original principal amount of $450,000.00 (hereinafter, as amended and in effect, the “NEOM-10-5 Debenture”);
|
|
20.
|
Secured Convertible Debenture dated January 10, 2011 issued by the Borrower to the Lender in the original principal amount of $450,000.00 (hereinafter, as amended and in effect, the “NEOM-11-1 Debenture”);
|
|
21.
|
Secured Convertible Debenture dated February 8, 2011 issued by the Borrower to the Lender in the original principal amount of $650,000.00 (hereinafter, as amended and in effect, the “NEOM-11-2 Debenture”);
|
|
22.
|
Secured Convertible Debenture dated March 11, 2011 issued by the Borrower to the Lender in the original principal amount of $450,000.00 (hereinafter, as amended and in effect, the “NEOM-11-3 Debenture”);
|
|
23.
|
Secured Convertible Debenture dated May 31, 2011 issued by the Borrower to the Lender in the original principal amount of $450,000.00 (hereinafter, as amended and in effect, the “NEOM-11-4 Debenture”) and collectively, together with the CCP-1 Debenture, the CCP-2 Debenture, the NEOM 4-1 Debenture, the NEOM 1-1 Debenture, the NEOM 2008-1 Debenture, the NEOM 2008-2 Debenture, the NEOM 2008-3 Debenture, the NEOM 2008-4 Debenture, the NEOM 9-1 Debenture, the NEOM 9-2 Debenture, the NEOM 9-4 Debenture, the NEOM 9-5 Debenture, the NEOM 9-6 Debenture, the NEOM 9-7 Debenture, the NEOM-10-2 Debenture, the NEOM-10-3 Debenture, the NEOM-10-4 Debenture and the NEOM-10-5 Debenture, the NEOM-11-1 Debenture, the NEOM-11-2 Debenture, the NEOM-11-3 Debenture and the Fifth 2011 Debenture, the “Debentures”);
|
|
24.
|
Master Amendment Agreement dated as of March 27, 2007 by and between the Borrower and the Lender;
|
|
25.
|
Securities Purchase Agreement dated as of August 23, 2006 entered into by and between the Borrower and the Lender;
|
|
26.
|
Securities Purchase Agreement dated as of December 29, 2006 entered into by and between the Borrower and the Lender;
|
|
27.
|
Securities Purchase Agreement dated as of March 27, 2007 entered into by and between the Borrower and the Lender;
|
|
28.
|
Securities Purchase Agreement dated as of August 24, 2007 entered into by and between the Borrower and the Lender;
|
|
29.
|
Securities Purchase Agreement dated as of July 29, 2008 entered into by and between the Borrower and the Lender, as amended on April 6, 2009;
|
|
30.
|
Agreement dated June 5, 2009 by and between the Borrower and the Lender pursuant to which the Lender purchased a secured convertible debenture in the original principal amount of $715,000;
|
|
31.
|
Agreement dated July 15, 2009 by and between the Borrower and the Lender pursuant to which the Lender purchased a secured convertible debenture in the original principal amount of $535,000;
|
|
32.
|
Agreement dated August 14, 2009 by and between the Borrower and the Lender pursuant to which the Lender purchased a secured convertible debenture in the original principal amount of $475,000;
|
|
33.
|
Securities Purchase Agreement, dated as of May 27, 2010, by and among the Borrower and the Lender pursuant to which the Lender purchased a Secured Convertible Debenture in the original principal amount of $2,006,137.04;
|
|
34.
|
Agreement, dated as of August 13, 2010, by and among the Borrower and the Lender pursuant to which the Lender purchased a Secured Convertible Debenture in the original principal amount of $550,000.00;
|
|
35.
|
Agreement, dated as of September 29, 2010, by and among the Borrower and the Lender pursuant to which the Lender purchased a Secured Convertible Debenture in the original principal amount of $475,000.00;
|
|
36.
|
Agreement, dated as of October 28, 2010, by and among the Borrower and the Lender pursuant to which the Lender purchased a Secured Convertible Debenture in the original principal amount of $400,000.00;
|
|
37.
|
Agreement, dated as of December 15, 2010, by and among the Borrower and the Lender pursuant to which the Lender purchased a Secured Convertible Debenture in the original principal amount of $450,000.00;
|
|
38.
|
Agreement, dated as of January 10, 2011, by and among the Borrower and the Lender pursuant to which the Lender purchased a Secured Convertible Debenture in the original principal amount of $450,000.00;
|
|
39.
|
Agreement, dated as of February 8, 2011, by and among the Company and the Investor pursuant to which the Investor purchased a Secured Convertible Debenture in the original principal amount of $650,000;
|
|
40.
|
Agreement, dated as of March 11, 2011, by and among the Company and the Investor pursuant to which the Investor purchased a Secured Convertible Debenture in the original principal amount of $450,000;
|
|
41.
|
Agreement, dated as of April 13, 2011, by and among the Company and the Investor pursuant to which the Investor purchased a Secured Convertible Debenture in the original principal amount of $450,000;
|
|
42.
|
Pledge and Security Agreement dated as of August 23, 2006 entered into by and between the Borrower and the Lender;
|
|
43.
|
Security Agreement dated as of March 27, 2007 entered into by and between the Obligors and the Lender;
|
|
44.
|
Security Agreement (Patent) dated as of March 27, 2007 entered into by and between the Obligors and the Lender;
|
|
45.
|
Security Agreement dated as of August 24, 2007 entered into by and between the Obligors and the Lender;
|
|
46.
|
Security Agreement (Patent) dated as of August 24, 2007 entered into by and between the Obligors and the Lender;
|
|
47.
|
Security Agreement dated as of July 29, 2008 entered into by and between the Borrower and the Lender;
|
|
48.
|
Patent Security Agreement dated as of July 29, 2008 entered into by and between the Borrower and the Lender;
|
|
49.
|
Share Pledge Agreement (Anteilsverpfandung) dated August 3, 2010 entered into by and between the Issuer and the Buyer;
|
|
50.
|
Agreement on the Pledge of Intellectual Property Rights as Collateral (Vereinbarung uber die Verpfandung von geistigen Eigentumsrechten) dated August 13, 2010 by and between the Buyer and NeoMedia Europe AG (“AG”);
|
|
51.
|
Security Transfer of Moveable Assets (Sicherungsubereignunsgvertrag) dated August 13, 2010 by and between the Buyer and AG;
|
|
52.
|
“A” Warrant No. CCP-001 dated February 17, 2006 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 20,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to “A” Warrant No. CCP-001 dated as of August 23, 2006 entered into by and between the Borrower and the Lender, as further amended by that certain Amendment to “A” Warrant No.: CCP-001 dated December 29, 2006;
|
|
53.
|
“B” Warrant No. CCP-002 dated February 17, 2006 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 25,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to “B” Warrant No. CCP-002 dated as of August 23, 2006 entered into by and between the Borrower and the Lender, as further amended by that certain Amendment to “B” Warrant No.: CCP-002 dated December 29, 2006;
|
|
54.
|
“C” Warrant No. CCP-003 dated February 17, 2006 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 30,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to “C” Warrant No. CCP-003 dated as of August 23, 2006 entered into by and between the Borrower and the Lender, as further amended by that certain Amendment to “C” Warrant No.: CCP-003 dated December 29, 2006;
|
|
55.
|
“A” Warrant No. CCP-001 dated August 23, 2006 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 25,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to “A” Warrant No. CCP-001 dated as of December 29, 2006 entered into by and between the Borrower and the Lender;
|
|
56.
|
“B” Warrant No. CCP-001 dated August 23, 2006 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 50,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to “B” Warrant No. CCP-001 dated as of December 29, 2006 entered into by and between the Borrower and the Lender;
|
|
57.
|
“C” Warrant No. CCP-001 dated August 23, 2006 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 50,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to “C” Warrant No. CCP-001 dated as of December 29, 2006 entered into by and between the Borrower and the Lender;
|
|
58.
|
“D” Warrant No. CCP-001 dated August 23, 2006 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 50,000,000 shares of the Borrower’s common stock;
|
|
59.
|
“A” Warrant No. CCP-001 dated December 29, 2006 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 42,000,000 shares of the Borrower’s common stock;
|
|
60.
|
Warrant No. NEOM-4-1 dated March 27, 2007 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 125,000,000 shares of the Borrower’s common stock;
|
|
61.
|
Warrant No. NEOM-1-1 dated August 24, 2007 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 75,000,000 shares of the Borrower’s common stock;
|
|
62.
|
Warrant No. NEO-2008-2 dated May 16, 2008 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 7,500,000 shares of the Borrower’s common stock;
|
|
63.
|
Warrant No. NEO-2008-3 dated May 29, 2008 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 50,000,000 shares of the Borrower’s common stock;
|
|
64.
|
Warrant No. NEOM-9-1 dated July 29, 2008 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 100,000,000 shares of the Borrower’s common stock;
|
|
65.
|
Warrant No. NEOM-9-1-B dated July 29, 2008 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 100,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to NeoMedia Technologies, Inc. Warrant No. NEOM-9-1B dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
66.
|
Warrant No. NEOM-9-1-C dated July 29, 2008 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 125,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to NeoMedia Technologies, Inc. Warrant No. NEOM-9-1C dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
67.
|
Warrant No. NEOM-9-1-D dated July 29, 2008 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 125,000,000 shares of the Borrower’s common stock, as amended by that certain Amendment to NeoMedia Technologies, Inc. Warrant No. NEOM-9-1D dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
68.
|
Warrant No. NEOM-10-1 dated January 5, 2010 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 225,000,000 shares of the Borrower’s common stock;
|
|
69.
|
Letter Agreement re: Repricing of All Existing Warrants dated August 24, 2007 entered into by and between the Borrower and the Lender;
|
|
70.
|
Warrant No.: NEOM-0510 dated May 27, 2010 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 5,000,000 shares of the Borrower’s common stock;
|
|
71.
|
Warrant No.: NEOM-0810 dated August 13, 2010 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 1,000,000 shares of the Borrower’s common stock;
|
|
72.
|
Warrant No.: NEOM-0910 dated September 29, 2010 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 750,000 shares of the Borrower’s common stock;
|
|
73.
|
Warrant No.: NEOM-1010 dated October 28, 2010 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 600,000 shares of the Borrower’s common stock;
|
|
74.
|
Warrant No.: NEOM-1210 dated December 15, 2010 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 1,250,000 shares of the Borrower’s common stock;
|
|
75.
|
Warrant No.: NEOM-0111 dated January 10, 2011 executed and delivered to the Lender by the Borrower granting the Lender the right to purchase 1,250,000 shares of the Borrower’s common stock;
|
|
76.
|
Warrant No.: NEOM-0211 dated February 8, 2011 executed and delivered to the Investor by the Company granting the Investor the right to purchase 1,250,000 shares of the Company’s common stock;
|
|
77.
|
Warrant No.: NEOM-0311 dated March 11, 2011 executed and delivered to the Investor by the Company granting the Investor the right to purchase 1,000,000 shares of the Company’s common stock;
|
|
78.
|
Warrant No.: NEOM-0411 dated April 13, 2011 executed and delivered to the Investor by the Company granting the Investor the right to purchase 1,000,000 shares of the Company’s common stock;
|
|
79.
|
Lender Registration Rights Agreement dated as of February 17, 2006 entered into by and between the Borrower and the Lender, as amended by a certain First Amendment to Lender Registration Rights Agreement and as further amended by that certain Second Amendment to Lender Registration Rights Agreement dated June 15, 2006;
|
|
80.
|
Lender Registration Rights Agreement dated as of August 23, 2006 entered into by and between the Borrower and the Lender;
|
|
81.
|
Lender Registration Rights Agreement dated as of December 29, 2006 entered into by and between the Borrower and the Lender;
|
|
82.
|
Registration Rights Agreement dated as of March 27, 2007 entered into by and between the Borrower and the Lender;
|
|
83.
|
Registration Rights Agreement dated as of August 24, 2007 entered into by and between the Borrower and the Lender;
|
|
84.
|
Lender Registration Rights Agreement dated as of January 5, 2010 entered into by and between the Borrower and the Lender;
|
|
85.
|
Amended and Restated Irrevocable Transfer Agent Instructions dated October 26, 2007 from the Borrower to Worldwide Stock Transfer, LLC, which amended and restated those certain Irrevocable Transfer Agent Instructions dated February 16, 2006 from the Borrower to American Stock Transfer & Trust Co.;
|
|
86.
|
Irrevocable Transfer Agent Instructions dated August 23, 2006 from the Borrower to American Stock Transfer & Trust Co.;
|
|
87.
|
Amended and Restated Irrevocable Transfer Agent Instructions dated November 21, 2007 from the Borrower to Worldwide Stock Transfer, LLC, which amended and restated those certain Irrevocable Transfer Agent Instructions dated December 29, 2006 from the Borrower to American Stock Transfer & Trust Co.;
|
|
88.
|
Amended and Restated Irrevocable Transfer Agent Instructions dated November 21, 2007 from the Borrower to Worldwide Stock Transfer, LLC, which amended and restated those certain Irrevocable Transfer Agent Instructions dated August 23, 2006 from the Borrower to American Stock Transfer & Trust Co.;
|
|
89.
|
Irrevocable Transfer Agent Instructions dated March 27, 2007 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
90.
|
Irrevocable Transfer Agent Instructions dated August 24, 2007 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
91.
|
Irrevocable Transfer Agent Instructions dated July 29, 2008 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
92.
|
Irrevocable Transfer Agent Instructions dated January 5, 2010 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
93.
|
Irrevocable Transfer Agent Instructions dated May 27, 2010 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
94.
|
Irrevocable Transfer Agent Instructions dated August 13, 2010 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
95.
|
Irrevocable Transfer Agent Instructions dated September 29, 2010 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
96.
|
Irrevocable Transfer Agent Instructions dated October 28, 2010 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
97.
|
Irrevocable Transfer Agent Instructions dated December 15, 2010 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
98.
|
Irrevocable Transfer Agent Instructions dated January 10, 2011 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
99.
|
Irrevocable Transfer Agent Instructions dated February 8, 2011 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
100.
|
Irrevocable Transfer Agent Instructions dated March 11, 2011 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
101.
|
Irrevocable Transfer Agent Instructions dated April 13, 2011 from the Borrower to Worldwide Stock Transfer, LLC;
|
|
102.
|
Blocked Account Control Agreement (“Shifting Control”) dated as of August 28, 2008 by and among the Borrower, the Lender, and JPMorgan Chase Bank, N.A.;
|
|
103.
|
Lockup Agreement dated July 28, 2008 by SKS Consulting of FL Corp. to the Lender;
|
|
104.
|
Lockup Agreement dated July 28, 2008 by James J. Keil to the Lender;
|
|
105.
|
Lockup Agreement dated July 28, 2008 by J. Scott Womble to the Lender;
|
|
106.
|
Pledge Shares Escrow Agreement dated March 27, 2007 between the Borrower and the Lender;
|
|
107.
|
Monitoring Fee Escrow Agreement dated January 5, 2010 by and among the Borrower, the Lender, Yorkville Advisors, LLC, and David Gonzalez, Esquire;
|
|
108.
|
Investment Agreement dated February 17, 2006 by and between the Borrower and the Lender;
|
|
109.
|
Investment Agreement dated January 5, 2010 by and between the Borrower and the Lender, as amended by that certain First Amendment to Investment Agreement dated March 5, 2010;
|
|
110.
|
Escrow Agreement dated July 29, 2008 entered into by and among the Borrower, the Lender, Yorkville Advisors, LLC, as Investment Manager, and David Gonzalez, Esq., as Escrow Agent;
|
|
111.
|
Escrow Agreement dated April 1, 2010 entered into by and among the Borrower, the Lender, Yorkville Advisors, LLC, as Investment Manager, and David Gonzalez, Esq., as Escrow Agent;
|
|
112.
|
Ratification Agreement dated as of May 27, 2010 entered into by and between the Borrower and the Lender;
|
113.
|
Ratification Agreement dated as of August 13, 2010 entered into by and between the Borrower and the Lender;
|
114.
|
Ratification Agreement dated as of September 29, 2010 entered into by and between the Borrower and the Lender;
|
115.
|
Ratification Agreement dated as of October 28, 2010 entered into by and between the Borrower and the Lender;
|
116.
|
Ratification Agreement dated as of December 15, 2010 entered into by and between the Borrower and the Lender;
|
|
117.
|
Ratification Agreement dated as of January 10, 2011 entered into by and between the Borrower and the Lender;
|
|
118.
|
Ratification Agreement dated as of February 8, 2011 entered into by and between the Borrower and the Lender;
|
|
119.
|
Ratification Agreement dated as of March 11, 2011 entered into by and between the Borrower and the Lender;
|
|
120.
|
Ratification Agreement dated as of April 13, 2011 entered into by and between the Borrower and the Lender; and
|
|
121.
|
All other documents, instruments, and agreements executed in connection with any of the foregoing.
|
WorldWide Stock Transfer , LLC
|
433 Hackensack Avenue, Level L
|
Hackensack, New Jersey 07601
|
RE:
|
NEOMEDIA TECHNOLOGIES, INC.
|
|
1.
|
Shares of Common Stock to be issued to the Buyer upon conversion of the Debenture (“Conversion Shares”) plus the shares of Common Stock to be issued to the Buyer upon conversion of accrued interest into Common Stock (the “Interest Shares”).
|
|
2.
|
Up to 1,000,000 shares of Common Stock to be issued to the Buyer upon exercise of the Warrant (the “Warrant Shares”).
|
|
1.
|
Conversion Shares, Warrant Shares and Interest Shares.
|
|
a.
|
Instructions Applicable to Transfer Agent. With respect to the Conversion Shares, Warrant Shares and the Interest Shares, the Transfer Agent shall issue the Conversion Shares, Warrant Shares and the Interest Shares to the Buyer from time to time upon delivery to the Transfer Agent of a properly completed and duly executed Conversion Notice (the “Conversion Notice”) in the form attached hereto as Exhibit A to the Debenture, or a properly completed and duly executed Exercise Notice (the “Exercise Notice”) in the form attached as Exhibit A to the Warrant, delivered to the Transfer Agent by the Company or on behalf of the Company by David Gonzalez, Esq. as escrow agent (the “Escrow Agent”). Upon receipt of a Conversion Notice or an Exercise Notice, the Transfer Agent shall, as soon as reasonably practical thereafter, (i) issue and surrender to a common carrier for overnight delivery to the address as specified in the Conversion Notice or the Exercise Notice, a certificate, registered in the name of the Buyer or its designees, for the number of shares of Common Stock to which the Buyer shall be entitled as set forth in the Conversion Notice or Exercise Notice, or (ii) provided the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, upon the request of the Buyer, credit such aggregate number of shares of Common Stock to which the Buyer shall be entitled to the Buyer’s or its designees’ balance account with DTC through its Deposit Withdrawal At Custodian (“DWAC”) system, provided that the Buyer causes its bank or broker to initiate the DWAC transaction, and further provided that a certificate representing such shares of Common Stock would not be required to bear a legend restricting transfer.
|
|
b.
|
The Company hereby confirms to the Transfer Agent and the Buyer that certificates representing the Conversion Shares, Warrant Shares and Interest Shares shall not bear any legend restricting transfer and should not be subject to any stop-transfer restrictions and shall otherwise be freely transferable on the books and records of the Company; provided that Buyer confirm to the Transfer Agent and the Company that the Conversion Shares, Warrant Shares and Interest Shares have been or will be sold only pursuant to an effective registration statement for such securities under the Securities Act of 1933, as amended (the “Act”), and that the Buyer has complied, or will comply, with all applicable prospectus delivery requirements; and further provided that counsel to the Company delivers (i) the Notice of Effectiveness set forth in Exhibit I attached hereto and (ii) an opinion of counsel in the form set forth in Exhibit II attached hereto, and that if the Conversion Shares, Warrant Shares and the Interest Shares are not registered for sale under the Act, then the certificates for the Conversion Shares, Warrant Shares and Interest Shares shall bear the following legend:
|
|
c.
|
In the event that counsel to the Company fails or refuses to render an opinion as required to issue the Conversion Shares, the Warrant Shares or the Interest Shares in accordance with the preceding paragraph (either with or without restrictive legends, as applicable), then the Company irrevocably and expressly authorizes counsel to the Buyer to render such opinion. The Transfer Agent shall accept and be entitled to rely on such opinion for the purposes of issuing the Conversion Shares, the Warrant Shares or the Interest Shares.
|
|
d.
|
Upon the Company’s or the Escrow Agent’s receipt of a properly completed Conversion Notice or Exercise Notice (along with evidence that the Aggregate Exercise Price (as defined in the Warrant) has been delivered to the Company), the Company or the Escrow Agent, as the case may be, shall, within one Trading Day thereafter, send to the Transfer Agent the Conversion Notice or Exercise Notice, as the case may be, which shall constitute an irrevocable instruction to the Transfer Agent to process such Conversion Notice or Exercise Notice in accordance with the terms of these instructions. For purposes hereof “Trading Day” shall mean any day on which the Nasdaq Market is open for customary trading.
|
|
2.
|
All Shares.
|
|
a.
|
The Company hereby irrevocably appoints the Escrow Agent as a duly authorized agent of the Company for the purposes of authorizing the Transfer Agent to process issuances and transfers specifically contemplated herein.
|
|
b.
|
The Transfer Agent shall rely exclusively on the Conversion Notice or the Exercise Notice, and shall have no liability for relying on such instructions. Any Conversion Notice or Exercise Notice delivered hereunder shall constitute an irrevocable instruction to the Transfer Agent to process such notice or notices in accordance with the terms thereof. Such notice or notices may be transmitted to the Transfer Agent by facsimile or any commercially reasonable method.
|
|
c.
|
The Company hereby confirms to the Transfer Agent and the Buyer that no instructions other than as contemplated herein will be given to Transfer Agent by the Company with respect to the matters referenced herein. The Company hereby authorizes the Transfer Agent, and the Transfer Agent shall be obligated, to disregard any contrary instructions received by or on behalf of the Company.
|
|
3.
|
Certain Notice Regarding the Escrow Agent. The Company and the Transfer Agent hereby acknowledge that the Escrow Agent is general counsel to the Buyer, a partner of the general partner of the Buyer and counsel to the Buyer in connection with the transactions contemplated and referred herein. The Company and the Transfer Agent agree that in the event of any dispute arising in connection with this Agreement or otherwise in connection with any transaction or agreement contemplated and referred herein, the Escrow Agent shall be permitted to continue to represent the Buyer and neither the Company nor the Transfer Agent will seek to disqualify such counsel.
|
|
4.
|
Company Acknowledgments.
|
|
a.
|
The Company hereby agrees that it shall not replace the Transfer Agent as the Company’s transfer agent without the prior written consent of the Buyer.
|
|
b.
|
The Company agrees that in the event that the Transfer Agent resigns as the Company’s transfer agent the Company shall engage a suitable replacement transfer agent that will agree to serve as transfer agent and to be bound by the terms and conditions of these Irrevocable Transfer Agent Instructions within 5 business days from the effectiveness of such resignation.
|
|
c.
|
The Company acknowledges that the Buyer is relying on the representations and covenants made by the Company hereunder and are a material inducement to the Buyer purchasing the Debenture pursuant to the Agreement. The Company further acknowledges that without such representations and covenants of the Company made hereunder, the Buyer would not purchase the Debenture.
|
|
d.
|
The Company specifically acknowledges and agrees that in the event of a breach or threatened breach by a party hereto of any provision hereof, the Buyer will be irreparably damaged and that damages at law would be an inadequate remedy if these Irrevocable Transfer Agent Instructions were not specifically enforced. Therefore, in the event of a breach or threatened breach by the Company, including, without limitation, the attempted termination of the agency relationship created by this instrument, the Buyer shall be entitled, in addition to all other rights or remedies, to an injunction restraining such breach, without being required to show any actual damage or to post any bond or other security, and/or to a decree for specific performance of the provisions of these Irrevocable Transfer Agent Instructions.
|
|
5.
|
Transfer Agent Binding Disclaimer: In consideration for the Transfer Agent agreeing and attesting to all terms in the above referenced Irrevocable Transfer Agent Instructions, in particular any kind of lawsuit and or action that may arise from the Buyer’s instructing the Transfer Agent to issue shares based on the legality of the Agreement whereas the Company is denying the request in full or partially for whatever reason, the Company, Buyer and any other third party involved agree for ourselves, our successors, legal representatives and assigns, at all times to defend, indemnify and save the Transfer Agent, their successors and assigns, free and harmless from and against any and all claims, from actions, suits, whether groundless or otherwise, and from and against any and all liabilities, taxes, losses, damages, costs, charges, counsel fees, and other expenses of every nature and character that arises from this action.
|
COMPANY:
|
||
Neomedia Technologies, Inc.
|
||
By:
|
/s/ Michael W. Zima
|
|
Name:
|
Michael W. Zima
|
|
Title:
|
CFO
|
|
BUYER:
|
||
YA Global Investments, L.P.
|
||
By:
|
Yorkville Advisors, LLC
|
|
Its:
|
Investment Manager
|
|
By:
|
/s/ Gerald Eicke
|
|
Name:
|
Gerald Eicke
|
|
Title:
|
Managing Member
|
ESCROW AGENT
|
||
By:
|
/s/ David Gonzalez
|
|
David Gonzalez, Esq.
|
By:
|
/s/ Yonah J. Kopstick
|
Name
|
Yonah J. Kopstick
|
Title:
|
SVP
|