Attached files
| file | filename |
|---|---|
| 8-K - NEOMEDIA TECHNOLOGIES INC | v187209_8k.htm |
| EX-10.4 - NEOMEDIA TECHNOLOGIES INC | v187209_ex10-4.htm |
| EX-10.1 - NEOMEDIA TECHNOLOGIES INC | v187209_ex10-1.htm |
| EX-10.2 - NEOMEDIA TECHNOLOGIES INC | v187209_ex10-2.htm |
| EX-10.3 - NEOMEDIA TECHNOLOGIES INC | v187209_ex10-3.htm |
| EX-10.8 - NEOMEDIA TECHNOLOGIES INC | v187209_ex10-8.htm |
RATIFICATION
AGREEMENT
THIS RATIFICATION AGREEMENT
(hereinafter, this “Agreement”) made this 27th day
of May, 2010 by and among:
YA GLOBAL INVESTMENTS,
L.P., f/k/a
Cornell Capital Partners, LP (the “Lender”), a Cayman Island
exempt limited partnership with offices located at 101 Hudson Street Suite 3700,
Jersey City, New Jersey 07302; and
NEOMEDIA TECHNOLOGIES, INC.
(the “Borrower”),
a Delaware corporation with its principal office located at Two Concourse
Parkway, Suite 500, Atlanta, Georgia 30328 and whose fax number is (678)
638-0466.
Background
Reference
is made to certain financing arrangements entered into by and between the
Borrower and certain of its former and/or current subsidiaries (collectively,
the “Obligors”) and the
Lender, evidenced by, among other things, the documents, instruments, and
agreements listed on Schedule
“1” 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”).
The
Borrower has represented to the Lender that it requires additional financing in
order to pursue one or more transactions within the next ninety (90) days and
that the expected proceeds from the consummation of such transaction(s) will be
sufficient to repay the New Loan (as defined herein) and to fund the Borrower’s
ongoing business operations for twelve (12) months. In connection
therewith, the Borrower has requested that the Lender make an additional
financial accommodation to the Borrower in the amount of $2,006,137.04 to fund
ongoing business operations and to pay off the 4/1/10 Note (as defined in
Schedule 1) in full, which financial accommodation shall be evidenced by, among
other documents, instruments, and agreements, a certain Secured Convertible
Debenture of even date herewith issued by the Borrower in favor of the Lender
(the “New Debenture”,
and collectively, together with this Agreement, the Existing Financing
Documents, the Related Documents (as defined herein) and all other documents,
instruments, and agreements executed in connection therewith or related thereto,
the “Financing
Documents”). The Lender has agreed to make such an additional
financial accommodation to the Borrower but only upon the condition, among
others, that the Borrower enters into this Agreement with the
Lender.
Accordingly,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed by and between the Borrower and the
Lender as follows:
Acknowledgment of
Indebtedness
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1.
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The
Borrower hereby acknowledges and agrees that it is liable to the Lender as
follows:
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|
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a.
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Owed
under the CCP-1 Debenture as of May 26,
2010:
|
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Principal
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$ | 5,000,000.00 | ||
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Interest
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$ | 1,576,675.05 | ||
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Total
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$ | 6,576,675.05 |
|
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b.
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Owed
under the CCP-2 Debenture as of May 26,
2010:
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Principal
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$ | 2,500,000.00 | ||
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Interest
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$ | 789,545.73 | ||
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Total
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$ | 3,289,545.73 |
|
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c.
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Owed
under the NEOM-4-1 Debenture as of May 26,
2010:
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Principal
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$ | 7,458,651.00 | ||
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Interest
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$ | 3,073,577.25 | ||
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Total
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$ | 10,532,228.25 |
|
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d.
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Owed
under the NEOM-1-1 Debenture as of May 26,
2010:
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Principal
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$ | 1,775,000.00 | ||
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Interest
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$ | 683,545.21 | ||
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Total
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$ | 2,458,545.21 |
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e.
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Owed
under the NEOM-2008-1 Debenture as of May 26,
2010:
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Principal
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$ | 390,000.00 | ||
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Interest
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$ | 126,262.50 | ||
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Total
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$ | 516,262.50 |
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f.
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Owed
under the NEOM-2008-2 Debenture as of May 26,
2010:
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Principal
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$ | 500,000.00 | ||
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Interest
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$ | 154,375.00 | ||
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Total
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$ | 654,375.00 |
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g.
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Owed
under the NEOM-2008-3 Debenture as of May 26,
2010:
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Principal
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$ | 790,000.00 | ||
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Interest
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$ | 239,633.34 | ||
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Total
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$ | 1,029,633.34 |
|
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h.
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Owed
under the NEOM-2008-4 Debenture as of May 26,
2010:
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Principal
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$ | 137,750.00 | ||
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Interest
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$ | 39,373.54 | ||
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Total
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$ | 176,373.54 |
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i.
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Owed
under the NEOM-9-1 Debenture as of May 26,
2010:
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Principal
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$ | 2,325,000.00 | ||
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Interest
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$ | 596,750.00 | ||
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Total
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$ | 2,921,750.00 |
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j.
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Owed
under the NEOM-9-2 Debenture as of May 26,
2010:
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Principal
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$ | 2,325,000.00 | ||
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Interest
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$ | 514,470.83 | ||
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Total
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$ | 2,839,470.83 |
|
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k.
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Owed
under the NEOM-9-4 Debenture as of May 26,
2010:
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Principal
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$ | 294,000.00 | ||
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Interest
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$ | 66,009.22 | ||
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Total
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$ | 360,099.22 |
|
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l.
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Owed
under the NEOM-9-5 Debenture as of May 26,
2010:
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Principal
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$ | 715,000.00 | ||
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Interest
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$ | 97,875.56 | ||
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Total
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$ | 812,875.56 |
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m.
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Owed
under the NEOM-9-6 Debenture as of May 26,
2010:
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Principal
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$ | 535,000.00 | ||
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Interest
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$ | 65,745.56 | ||
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Total
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$ | 600,745.56 |
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n.
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Owed
under the NEOM-9-7 Debenture as of May 26,
2010:
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Principal
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$ | 475,000.00 | ||
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Interest
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$ | 52,830.56 | ||
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Total
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$ | 527,830.56 |
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o.
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Owed
under the 4/1/10 Note as of May 26,
2010:
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Principal
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$ | 500,000.00 | ||
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Interest
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$ | 6,137.04 | ||
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Total
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$ | 506,137.04 |
|
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p.
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For
all interest accruing from and after May 26, 2010 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).
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Hereinafter,
all amounts due as set forth in this Paragraph , and all amounts hereafter owed
or due under the New Debenture and/or the other Financing Documents shall be
referred to collectively as the “Obligations”.
Waiver of
Claims
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2.
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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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Ratification of Financing
Documents; Confirmation of Collateral; Cross-Default;
Cross-Collateralization;
Further Assurances
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3.
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The
Borrower:
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|
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a.
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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;
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b.
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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 8, 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.
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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.
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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.
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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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Conditions
Precedent
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4.
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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:
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a.
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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 Borrower remain duly perfected,
first priority security interests, subject only to such liens and security
interests granted in favor of the
Lender;
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b.
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The
Borrower shall have (i) executed and delivered to the Lender all
documents, instruments, and agreements required by the Lender in
connection with the New 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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|
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c.
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The
Borrower shall have paid to the Lender’s investment manager, Yorkville
Advisors, LLC, a commitment and structuring fee in the amount of
$90,000.00 in good and collected funds in accordance with the closing
statement of even date herewith;
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d.
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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
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e.
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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.
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New Loan
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5.
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The
Borrower has requested that the Lender make a short-term loan in the
original principal amount of $2,006,137.04 (the “New Loan”) to fund
ongoing business operations while the Borrower seeks to negotiate certain
business transactions and to pay off the 4/1/10 Note in
full. Upon the satisfaction of all of the conditions precedent
set forth in Paragraph 5 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 New
Debenture and the Related Documents, the New Loan shall (a) be made by the
Lender in accordance with the terms and conditions of the New Debenture
and the other Financing Documents, (b) constitute a portion of the
Obligations, and (c) shall 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) the Lender has the right on or after August 26, 2010 to
require one or more mandatory redemptions of all or a portion of the
amounts due under the New Debenture, and, if the Lender elects to require
such a mandatory redemption or redemptions, the Borrower will comply with
the same regardless of whether the Borrower is able to consummate the
contemplated transaction(s) or whether the proceeds of such transaction(s)
are sufficient to satisfy the amount(s) of any such required mandatory
redemption(s).
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Condition
Subsequent
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6.
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On
or before thirty (30) days from the date hereof, 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.
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Cooperation With Respect to
NeoMedia Europe AG
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7.
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The
Borrower shall cooperate fully with the Lender to cause (subject to, and
only to the extent permissible under, German law) the Borrower’s
wholly-owned subsidiary, NeoMedia Europe AG (f/k/a Gavitec AG) (“AG”), to execute and
deliver to the Lender any and all documents, instruments, or agreements in
a form and substance acceptable to the Lender in all respects (including,
without limitation, a Share Pledge Agreement, Security Assignment
Agreement, and IP Pledge Agreement) pursuant to which AG shall become a
guarantor of the Obligations and grant a first priority perfected security
interest in favor of the Lender in all of AG’s assets, including without
limitation, all intellectual
property.
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Provision Regarding Events
of Default Under The Financing Documents
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8.
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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 at the address set forth in this Agreement by facsimile
and by United States First Class Mail, postage prepaid, provided, however, that
(a) such declaration shall be effective upon the mailing of the notice 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.
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Representations, Warranties,
and Covenants
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9.
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The
Borrower hereby represents, warrants, and covenants to the Lender as
follows:
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a.
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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.
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|
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b.
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This
Agreement and the other Financing Documents constitute legal, valid, and
binding obligations of the Borrower, enforceable in accordance with their
respective terms.
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c.
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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.
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d.
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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.
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e.
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The
representations and warranties contained in the New Debenture and
documents related to the New Debenture are true and correct as of the date
hereof.
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f.
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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.
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g.
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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.
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|
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h.
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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, (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.
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i.
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The
Borrower acknowledges and agrees that in accordance with Section 3(b) of
the New Debenture, from and after August 26, 2010, the Lender may require
the mandatory redemption of all or a portion of the outstanding balance of
the New Debenture, and that such date provides a reasonable time for the
Borrower to redeem the New Debenture in full, and that the Borrower fully
and reasonably expects to be able to do so, if and when the Lender elects
to require such a mandatory redemption or
redemptions.
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j.
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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.
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Costs of
Collection
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10.
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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.
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Waiver of Jury
Trial
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11.
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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.
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Credit
Bidding
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12.
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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.
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Consent to
Jurisdiction
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13.
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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:
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|
|
a.
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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.
|
|
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b.
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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.
|
|
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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.
|
|
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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.
|
|
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e.
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Agree
that nothing herein shall affect the right of the Lender to bring legal
actions or proceedings in any other competent
jurisdiction.
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Non-Interference
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14.
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From
and after the date hereof, the Borrower
agrees:
|
|
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a.
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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;
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b.
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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.
|
Entire
Agreement
|
15.
|
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.
|
Construction of
Agreement
|
16.
|
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.
|
Illegality or
Unenforceability
|
17.
|
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.
|
Counterparts
|
18.
|
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.
|
[Remainder
of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this
Ratification Agreement has been executed as of the date first set forth
above.
|
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:
Chief Financial
Officer
|
|||
[Signature Page to Ratification Agreement]
Schedule
“1”
(Financing
Documents)
DEBENTURES AND
NOTES
|
|
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 the Borrower, 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 the Borrower, 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 the Borrower, 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;
|
[Schedule
1: Financing Documents]
|
|
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;
|
[Schedule
1: Financing Documents]
|
|
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”, 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, and the New Debenture, the “Debentures”), 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.
|
Promissory
Note dated April 1, 2010 made by the Borrower payable to the Lender in the
original principal amount of $500,000.00 (hereinafter, the “4/1/10 Note”, and
collectively, together with the Debentures and the 12/23/09 Note, the
“Debt
Instruments”);
|
|
|
16.
|
Master
Amendment Agreement dated as of March 27, 2007 by and between the Borrower
and the Lender;
|
SECURITIES PURCHASE
AGREEMENTS
|
|
17.
|
Securities
Purchase Agreement dated as of August 23, 2006 entered into by and between
the Borrower and the Lender;
|
|
|
18.
|
Securities
Purchase Agreement dated as of December 29, 2006 entered into by and
between the Borrower and the
Lender;
|
|
|
19.
|
Securities
Purchase Agreement dated as of March 27, 2007 entered into by and between
the Borrower and the Lender;
|
|
|
20.
|
Securities
Purchase Agreement dated as of August 24, 2007 entered into by and between
the Borrower and the Lender;
|
|
|
21.
|
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;
|
|
|
22.
|
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;
|
|
|
23.
|
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;
|
[Schedule
1: Financing Documents]
|
|
24.
|
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;
|
SECURITY
DOCUMENTS
|
|
25.
|
Pledge
and Security Agreement dated as of August 23, 2006 entered into by and
between the Borrower and the
Lender;
|
|
|
26.
|
Security
Agreement dated as of March 27, 2007 entered into by and between the
Obligors and the Lender;
|
|
|
27.
|
Security
Agreement (Patent) dated as of March 27, 2007 entered into by and between
the Obligors and the Lender;
|
|
|
28.
|
Security
Agreement dated as of August 24, 2007 entered into by and between the
Obligors and the Lender;
|
|
|
29.
|
Security
Agreement (Patent) dated as of August 24, 2007 entered into by and between
the Obligors and the Lender;
|
|
|
30.
|
Security
Agreement dated as of July 29, 2008 entered into by and between the
Borrower and the Lender (the “2008 Security
Agreement”);
|
|
|
31.
|
Patent
Security Agreement dated as of July 29, 2008 entered into by and between
the Borrower and the Lender (the “2008 IPSA”, and together
with the 2008 Security Agreement, the “2008 Collateral
Agreements”);
|
WARRANTS
|
|
32.
|
“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;
|
|
|
33.
|
“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;
|
|
|
34.
|
“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;
|
[Schedule
1: Financing Documents]
|
|
35.
|
“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;
|
|
|
36.
|
“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;
|
|
|
37.
|
“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;
|
|
|
38.
|
“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;
|
|
|
39.
|
“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;
|
|
|
40.
|
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;
|
|
|
41.
|
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;
|
|
|
42.
|
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;
|
|
|
43.
|
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;
|
[Schedule
1: Financing Documents]
|
|
44.
|
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;
|
|
|
45.
|
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;
|
|
|
46.
|
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;
|
|
|
47.
|
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;
|
|
|
48.
|
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;
|
|
|
49.
|
Letter
Agreement re: Repricing of All Existing Warrants dated August 24, 2007
entered into by and between the Borrower and the
Lender;
|
REGISTRATION RIGHTS
AGREEMENTS
|
|
50.
|
Investor
Registration Rights Agreement dated as of February 17, 2006 entered into
by and between the Borrower and the Lender, as amended by the First
Amendment to Investor Registration Rights Agreement dated and as further
amended by that certain Second Amendment to Investor Registration Rights
Agreement dated June 15, 2006;
|
|
|
51.
|
Investor
Registration Rights Agreement dated as of August 23, 2006 entered into by
and between the Borrower and the
Lender;
|
|
|
52.
|
Investor
Registration Rights Agreement dated as of December 29, 2006 entered into
by and between the Borrower and the
Lender;
|
|
|
53.
|
Registration
Rights Agreement dated as of March 27, 2007 entered into by and between
the Borrower and the Lender;
|
|
|
54.
|
Registration
Rights Agreement dated as of August 24, 2007 entered into by and between
the Borrower and the Lender;
|
[Schedule
1: Financing Documents]
|
|
55.
|
Investor
Registration Rights Agreement dated as of January 5, 2010 entered into by
and between the Borrower and the
Lender;
|
TRANSFER AGENT
INSTRUCTIONS
|
|
56.
|
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.;
|
|
|
57.
|
Irrevocable
Transfer Agent Instructions dated August 23, 2006 from the Borrower to
American Stock Transfer & Trust
Co.;
|
|
|
58.
|
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.;
|
|
|
59.
|
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.;
|
|
|
60.
|
Irrevocable
Transfer Agent Instructions dated March 27, 2007 from the Borrower to
Worldwide Stock Transfer, LLC;
|
|
|
61.
|
Irrevocable
Transfer Agent Instructions dated August 24, 2007 from the Borrower to
Worldwide Stock Transfer, LLC;
|
|
|
62.
|
Irrevocable
Transfer Agent Instructions dated July 29, 2008 from the Borrower to
Worldwide Stock Transfer, LLC;
|
|
|
63.
|
Irrevocable
Transfer Agent Instructions dated January 5, 2010 from the Borrower to
Worldwide Stock Transfer, LLC;
|
OTHER
DOCUMENTS
|
|
64.
|
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.;
|
|
|
65.
|
Lockup
Agreement dated July 28, 2008 by SKS Consulting of FL Corp. to the
Lender;
|
|
|
66.
|
Lockup
Agreement dated July 28, 2008 by James J. Keil to the
Lender;
|
|
|
67.
|
Lockup
Agreement dated July 28, 2008 by J. Scott Womble to the
Lender;
|
[Schedule
1: Financing Documents]
|
|
68.
|
Pledge
Shares Escrow Agreement dated March 27, 2007 between the Borrower and the
Lender;
|
|
|
69.
|
Monitoring
Fee Escrow Agreement dated January 5, 2010 by and among the Borrower, the
Lender, Yorkville Advisors, LLC, and David Gonzalez,
Esquire;
|
|
|
70.
|
Investment
Agreement dated February 17, 2006 by and between the Borrower and the
Lender;
|
|
|
71.
|
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;
|
|
|
72.
|
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;
|
|
|
73.
|
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;
and
|
|
|
74.
|
All
other documents, instruments, and agreements executed in connection with
any of the foregoing.
|
[Schedule
1: Financing Documents]