INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (the "Agreement") is dated as of
________________, 2004, by and between NEOMEDIA TECHNOLOGIES, INC. a Delaware
corporation, (the "Buyer"), and IPOINT-MEDIA LTD., a company chartered under the
laws of the State of Israel (the "Company").
RECITALS:
The parties have reached an agreement pursuant to which the Buyer shall
make an investment in the Company, and the Company shall issue and sell to the
Buyer ordinary shares, par value NIS 1 per share (the "Ordinary Shares"), all in
accordance with the terms hereof.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual premises herein set
forth and certain other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. ISSUANCE OF SHARES AND RELATED TRANSACTIONS.
1.1. Issuance of Shares. At Closing (as defined
below), subject to the terms, restrictions and conditions of
this Agreement, the Buyer shall acquire, and the Company shall
sell, issue and deliver to the Buyer a total of _____ ordinary
shares (the "Buyer's Stock"). All Buyer's Stock to be issued
hereunder shall be free and clear of all liens, claims,
pledges, mortgages, restrictions, obligations, security
interests and encumbrances of any kind, nature and description
(collectively, "Encumbrances").
1.2. Purchase Price. The purchase price (the
"Purchase Price") for the Buyer's Stock shall be equal to
$1,000,000, which shall be paid to the Company in immediately
available funds no later than three (3) business days after
Closing Date (as set forth in SECTION 1.3 hereof).
1.3. Closing. The parties to this Agreement shall
consummate the transactions contemplated by this Agreement at
a closing (the "Closing") to be held no later than September
__, 2004; provided, in no event shall the Closing occur prior
to the satisfaction of the conditions precedent set forth in
SECTIONS 6, 7 AND 8 hereof. The date of Closing is referred to
herein as the "Closing Date." The Closing shall take place at
the offices of counsel to the Buyer, or at such other place as
may be mutually agreed upon by the Buyer and the Company. At
the Closing, the Company shall deliver to the Buyer
certificates representing the Buyer's Stock.
2. ADDITIONAL AGREEMENTS.
2.1. Agreement to Register the Buyer's Ordinary
Shares. The Company shall register the Buyer's Stock with the
SEC pursuant to the terms of a Registration Rights Agreement
of even date herewith between the Company and the Buyer.
2.2. Access and Inspection, Etc. The Company shall
allow the Buyer and its authorized representatives full access
during normal business hours from and after the date hereof
and prior to the Closing Date to all of the properties, books,
contracts, commitments and records of the Company for the
purpose of making such investigations as the Buyer may
reasonably request in connection with the transactions
contemplated hereby, and shall cause the Company to furnish
Buyer such information concerning its affairs as Buyer may
reasonably request. The Company has caused and shall cause its
personnel to assist the Buyer in making such investigation and
shall use their best efforts to cause the counsel,
accountants, engineers and other non-employee representatives
of the Company to be reasonably available to Buyer for such
purposes.
2.3. Public Announcements. The parties will consult
with each other before issuing any press releases or otherwise
making any public statement with respect to this Agreement or
any of the transactions contemplated hereby and no party will
issue any such press release or make any such public statement
without the prior written consent of the other parties, except
as may be required by law or by the rules and regulations of
any governmental authority or securities exchange.
2.4. Best Efforts. Subject to the terms and
conditions provided in this Agreement, each of the parties
shall use its best efforts in good faith to take or cause to
be taken as promptly as practicable all reasonable actions
that are within its power to cause to be fulfilled those
conditions precedent to its obligations or the obligations of
the other parties to consummate the transactions contemplated
by this Agreement that are dependent upon its actions.
2.5. Further Assurances. The parties shall deliver
any and all other instruments or documents required to be
delivered pursuant to, or necessary or proper in order to give
effect to, the provisions of this Agreement, including,
without limitation, to issue the Buyer's Stock and to
consummate the transactions contemplated by this Agreement.
2.6. Consolidation; Merger. The Company shall not, at
any time after the date hereof, without the prior written
consent of the Buyer, effect any merger or consolidation of
the Company with or into, or a transfer of all or
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substantially all the assets of the Company to another entity
(a "Consolidation Event"), regardless of whether the Company
is the surviving entity, unless such Consolidation Event would
result in the Buyer receiving earning a net return of 100% on
the investment made pursuant to that Investment Agreement of
even date herewith.
3. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE COMPANY.
To induce Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, the Company represents and warrants to and
covenants with the Buyer as follows:
3.1. Organization; Compliance. The Company is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Israel. The Company
is: (a) entitled to own or lease its properties and to carry
on its business as and in the places where such business is
now conducted, and (b) duly licensed and qualified in all
jurisdictions where the character of the property owned by it
or the nature of the business transacted by it makes such
license or qualification necessary, except where the failure
to do so would not result in a material adverse effect on the
Company.
3.2. Capitalization and Related Matters.
(a) The Company has an authorized capital consisting of
200,000 Ordinary Shares, of which 2,970 Ordinary Shares are issued and
outstanding as of the date hereof (excluding the Buyer's Stock). All Ordinary
Shares are duly and validly issued, fully paid and nonassessable. No Ordinary
Shares (i) were issued in violation of the preemptive rights of any shareholder,
or (ii) are held as treasury stock.
(b) Except as set forth in Schedule 3.2(b), there are no
outstanding any securities convertible into Ordinary Shares or any other capital
stock of the Company nor any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, such capital stock or securities convertible into such
capital stock (collectively, "Securities Rights"). The Company: (i) is not
subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any of its capital stock; or (ii) has no liability for
dividends or other distributions declared or accrued, but unpaid, with respect
to any capital stock.
(c) The Company is not a party to any agreement, understanding
or arrangement, direct or indirect, relating to any class or series of the
Company's capital stock, including, without limitation, any voting agreement,
restriction on resale, shareholder agreement or registration rights agreement.
3.3. Subsidiaries and Investments.
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(a) Schedule 3.3 discloses with respect to each Subsidiary (as
defined below) (i) its name, (ii) the jurisdiction of its organization, (iii)
the number of its authorized shares or other equity interests, (iv) the number
of its outstanding shares or other equity interests of each class or series, and
(v) the name of the owner and the number and percentage of outstanding shares or
other equity interests of each class or series of such Subsidiary owned of
record and, if different, owned beneficially by the Company and any other
person. All of the outstanding capital stock and other equity interests of each
of the Subsidiaries is validly issued, fully paid and nonassessable and was
issued in compliance with all applicable federal and state securities or "blue
sky" laws and regulations. There are no Securities Rights relating to any shares
of capital stock, other equity interests or other securities of any of the
Subsidiaries. The Company and the Subsidiaries have good, marketable and
exclusive title to the shares or other equity interests disclosed on Schedule
3.3 as being owned by each of them, free and clear of all Encumbrances. All
rights and powers to vote such shares or other equity interests are held
exclusively by the Company, directly or indirectly through one or more of the
Subsidiaries, as the case may be. Each Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and has the corporate power and authority to own
or lease its properties and to carry on its business as now conducted. For the
purposes hereof, a "Subsidiary" means any corporation, limited liability
company, partnership, joint venture or other entity in which the Company owns,
directly or indirectly, more than 20% of the outstanding voting securities or
equity interests.
(b) Except as disclosed in Schedule 3.3, the Company does not
own, nor has it ever owned, any equity interest in any corporation, limited
liability company, partnership, joint venture or other entity.
3.4. Execution; No Inconsistent Agreements; Etc.
(a) This Agreement is a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy or similar laws affecting the enforcement of
creditors' rights generally, and the availability of equitable remedies.
(b) The execution and delivery of this Agreement by the
Company does not, and the consummation of the transactions contemplated hereby
will not, constitute a breach or violation of the charter or bylaws of the
Company, or a default under any of the terms, conditions or provisions of (or an
act or omission that would give rise to any right of termination, cancellation
or acceleration under) any note, bond, mortgage, lease, indenture, agreement or
obligation to which the Company is a party, pursuant to which the Company
otherwise receives benefits, or to which any of the properties of the Company is
subject.
3.5. Corporate Records. The statutory records,
including the stock register and minute books of the Company,
fully reflect all issuances, transfers and redemptions of its
capital stock, correctly show and will correctly show the
total number of shares of its capital stock issued and
outstanding on the date hereof and on the Closing Date, the
charter or other organizational documents and all amendments
thereto, and bylaws as amended and currently in force.
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3.6. Financial Statements.
(a) The Company has delivered to the Buyer (i) the
consolidated audited balance sheet of the Company as of December 31, 2002, and
the consolidated audited consolidated profit and loss statement of the Company
for the fiscal year ended December 31, 2002 and (ii) the consolidated unaudited
balance sheet of the Company as of December 31, 2003 and the consolidated
unaudited profit and loss statement of the Company for the twelve months ended
December 31, 2003 (the balance sheet as of December 31, 2003 is hereinafter
referred to as the "2003 Company Balance Sheet"). All the foregoing financial
statements, and any financial statements delivered pursuant to subsection (c)
below, are referred to herein collectively as the "Company Financial
Statements."
(b) The Company Financial Statements have been and will be
prepared in accordance with U.S. GAAP, applied on a consistent basis (except
that the unaudited statements do not contain all the disclosures required by
GAAP), and fairly reflect and will reflect in all material respects the
financial condition of the Company as at the dates thereof and the results of
the operations of the Company for the periods then ended.
3.7. Liabilities. Except as described in Schedule 3.7
hereof, the Company has no material debt, liability or
obligation of any kind, whether accrued, absolute, contingent
or otherwise, except: (a) those reflected on the 2003 Company
Balance Sheet, including the notes thereto, and (b)
liabilities incurred in the ordinary course of business since
December 31, 2003, none of which have had or will have a
material adverse effect on the financial condition of the
Company.
3.8. Absence of Changes. Except as described in
Schedule 3.8 and in the other Schedules to this Agreement,
from December 31, 2003 to the date of this Agreement:
(a) there has not been any adverse change in the business,
assets, liabilities, results of operations or financial condition of the Company
or in its relationships with suppliers, customers, employees, lessors or others
other than changes in the ordinary course of business, none of which, singularly
or in the aggregate, have had or will have a material adverse effect on the
business, properties or financial condition of the Company; and
(b) the Company has complied with the covenants and
restrictions set forth in SECTION 5 to the same extent as if this Agreement had
been executed on, and had been in effect since, December 31, 2003.
3.9. Title to Properties. The Company has good and
marketable title to all of its properties and assets, real and
personal, including, but not limited to, those reflected in
the 2003 Company Balance Sheet (except as since sold or
otherwise disposed of in the ordinary course of business, or
as expressly provided for in this Agreement), free and clear
of all Encumbrances of any kind or character except: (a) those
securing liabilities of the Company incurred in the ordinary
course (with respect to which no material default exists); (b)
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liens of 2004 real estate and personal property taxes; and (c)
imperfections of title and Encumbrances, if any, which, in the
aggregate (i) are not substantial in amount; (ii) do not
detract from the value of the property subject thereto or
impair the operations of the Company or; and (iii) do not have
a material adverse effect on the business, properties or
assets of the Company.
3.10. Compliance With Law. The business and
activities of the Company has at all times been conducted in
accordance with its articles and memorandum of association and
any applicable law, regulation, ordinance, order, License
(defined below), permit, rule, injunction or other restriction
or ruling of any court or administrative or governmental
agency, ministry, or body, except where the failure to do so
would not result in a material adverse effect on the Company.
3.11. Taxes. The Company has duly filed all material
federal, state, local and foreign tax returns and reports, and
all returns and reports of all other governmental units having
jurisdiction with respect to taxes imposed on it or on its
income, properties, sales, franchises, operations or employee
benefit plans or trusts, all such returns were complete and
accurate when filed, and all taxes and assessments payable by
the Company have been paid to the extent that such taxes have
become due. All taxes accrued or payable by the Company for
all periods through December 31, 2003 have been accrued or
paid in full, whether or not due and payable and whether or
not disputed. The Company has withheld proper and accurate
amounts from its employees for all periods in full compliance
with the tax withholding provisions of applicable foreign,
federal, state and local tax laws. There are no waivers or
agreements by the Company for the extension of time for the
assessment of any taxes. The tax returns of the Company have
never been examined by any authority or other administrative
body or court of any state or country. There are not now any
examinations of the income tax returns of the Company pending,
or any proposed deficiencies or assessments against the
Company of additional taxes of any kind. The Company shall
duly and timely prepare and file all material federal, state,
local and foreign tax returns and reports for 2004, and all
returns and reports of all other governmental units having
jurisdiction with respect to taxes imposed on the Company or
on its income, properties, sales, franchises, operations or
employee benefit plans or trusts, and all such returns will be
complete and accurate when filed.
3.12. Real Properties. The Company does not have an
interest in any real property, except for the Leases (as
defined below).
3.13. Leases of Real Property. All leases pursuant to
which the Company is lessee or lessor of any real property
(the "Leases") are listed in Schedule 3.13 and are valid and
enforceable in accordance with their terms. There is not under
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any of such leases (a) any material default or any claimed
material default by the Company or any event of default or
event which with notice or lapse of time, or both, would
constitute a material default by the Company and in respect to
which the Company has not taken adequate steps to prevent a
default on its part from occurring, or (b) to the knowledge of
the Company, any material default by any lessee of the Company
or any event of default or event which with notice or lapse of
time, or both, would constitute a material default by any
lessee. The copies of the Leases heretofore furnished to Buyer
are true, correct and complete, and such Leases have not been
modified in any respect since the date they were so furnished,
and are in full force and effect in accordance with their
terms. The Company is lawfully in possession of all real
properties of which they are a lessee (the "Leased
Properties").
3.14. Contingencies. Except as disclosed on Schedule
3.14, there are no actions, suits, claims or proceedings
pending, or to the knowledge of the Company threatened
against, by or affecting, the Company in any court or before
any arbitrator or governmental agency that may have a material
adverse effect on the Company or which could materially and
adversely affect the right or ability of the Company to
consummate the transactions contemplated hereby. To the
knowledge of the Company, there is no valid basis upon which
any such action, suit, claim, or proceeding may be commenced
or asserted against it. There are no unsatisfied judgments
against the Company and no consent decrees or similar
agreements to which the Company is subject and which could
have a material adverse effect on the Company.
3.15. Products Liability; Warranties; Insurance. The
Company will have not loss, damage, liability, fine, penalty,
cost and expense (each, a "Liability") that is not fully
covered by insurance relating to any product manufactured,
distributed or sold by the Company prior to the Closing,
whether or not such Liability is related to products that are
defective or improperly designed or manufactured or are in
breach of any express or implied product warranty.
3.16. Intellectual Property Rights.
(a) The Company owns and possesses all right, title and
interest in and to, or has a valid license to use, all of the Proprietary Rights
(as defined below) necessary for the operation of its business as presently
conducted and none of such Proprietary Rights have been abandoned;
(b) no claim by any third party contesting the validity,
enforceability, use or ownership of any such Proprietary Rights has been made,
is currently outstanding or, to the knowledge of the Company, is threatened, and
to the knowledge of the Company there is no reasonable basis for any such claim;
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(c) neither the Company nor any registered agent of any of the
foregoing has received any notice of, nor is the Company aware of any reasonable
basis for an allegation of, any infringement or misappropriation by, or conflict
with, any third party with respect to such Proprietary Rights, nor has the
Company, or any registered agent of any of them received any claim of
infringement or misappropriation of or other conflict with any Proprietary
Rights of any third party;
(d) the Company has not infringed, misappropriated or
otherwise violated any Proprietary Rights of any third parties, and the Company
is not aware of any infringement, misappropriation or conflict which will occur
as a result of the continued operation of the Company as presently operated and
as contemplated to be operated or as a result of the consummation of the
transactions contemplated hereby; and
(e) all employees who have contributed to or participated in
the conception and/or development of all or any part of the Proprietary Rights
which are not licensed to the Company from a third party either (i) have been
party to a "work-for-hire" arrangement or agreement with the Company, in
accordance with applicable federal and state law, that has accorded the Company
full, effective, exclusive, and original ownership of all tangible and
intangible property thereby arising, or (ii) have executed appropriate
instruments of assignment in favor of the Company as assignee that have conveyed
to the Company full, effective and exclusive ownership of all tangible and
intangible property thereby arising.
(f) As used herein, the term "Proprietary Rights" means all
proprietary information of the Company, as the case may be, including all
patents, patent applications, patent disclosures and inventions (whether or not
patentable and whether or not reduced to practice), all trademarks, service
marks, trade dress, trade names, corporate names, domain names, copyrights, all
trade secrets, confidential information, ideas, formulae, compositions,
know-how, processes and techniques, drawings, specifications, designs, logos,
plans, improvements, proposals, technical and computer data, documentation and
software, financial, business and marketing plans, and related information and
all other proprietary, industrial or intellectual property rights relating to
the business of the Company, including those proprietary, industrial or
intellectual property rights found at the Company's websites listed on Schedule
3.16.
(g) The consummation of the transactions contemplated by this
Agreement will not adversely affect the right of the Company to continue to use
the Proprietary Rights. To the extent that the registration of any Proprietary
Right is required by law, such Proprietary Right has been duly and validly
registered or filed, and any fees that are necessary to maintain in force any
Proprietary Rights or registrations thereof have been paid. Schedule 3.16 sets
forth a list and description of the copyrights, trademarks, service marks, trade
dress, trade names and domain names used or held by the Company and, where
appropriate, the date, serial or registration number, and place of any
registration thereof.
3.17. Material Contracts. Schedule 3.17 contains a
complete list of all contracts of the Company which involve
consideration in excess of the equivalent of $25,000 or have a
term of one year or more (the "Material Contracts"). The
Company has delivered to Buyer a true, correct and complete
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copy of each of the written contracts, and a summary of each
oral contract, listed on Schedule 3.17. Except as disclosed in
Schedule 3.17: (a) the Company has performed all material
obligations to be performed by them under all such contracts,
and is not in material default thereof, and (b) no condition
exists or has occurred which with the giving of notice or the
lapse of time, or both, would constitute a material default by
the Company or accelerate the maturity of, or otherwise
modify, any such contract, and (c) all such contracts are in
full force and effect. No material default by any other party
to any of such contracts is known or claimed by the Company to
exist.
3.18. Employee Benefit Matters.
(a) Except as disclosed in Schedule 3.18, the Company does not
provide, nor is it obligated to provide, directly or indirectly, any benefits
for employees other than salaries, sales commissions and bonuses, including, but
not limited to, any pension, profit sharing, stock option, retirement, bonus,
hospitalization, insurance, severance, vacation or other employee benefits
(including any housing or social fund contributions) under any practice,
agreement or understanding.
(b) Each employee benefit plan maintained by or on behalf of
the Company or any other party (including any terminated pension plans) which
covers or covered any employees or former employees of the Company
(collectively, the "Employee Benefit Plan") is listed in Schedule 3.18. The
Company has delivered to Buyer true and complete copies of all such plans and
any related documents. With respect to each such plan: (a) no litigation,
administrative or other proceeding or claim is pending, or to the knowledge of
the Company, threatened or anticipated involving such plan; (b) there are no
outstanding requests for information by participants or beneficiaries of such
plan; and (c) such plan has been administered in compliance in all material
respects with all applicable laws and regulations.
(c) The Company has timely made payment in full of all
contributions to all of the Employee Benefit Plans which the Company was
obligated to make prior to the date hereof; and there are no contributions
declared or payable by the Company to any Employee Benefit Plan which, as of the
date hereof, has not been paid in full.
3.19. Possession of Franchises, Licenses, Etc. The
Company: (a) possesses all material franchises, certificates,
licenses, permits and other authorizations (collectively, the
"Licenses") from governmental authorities, political
subdivisions or regulatory authorities that are necessary for
the ownership, maintenance and operation of its business in
the manner presently conducted; (b) are not in violation of
any provisions thereof; and (c) have maintained and amended,
as necessary, all Licenses and duly completed all filings and
notifications in connection therewith.
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3.20. Environmental Matters. Except as disclosed in
Schedule 3.20: (i) the Company is not in violation, in any
material respect, of any Environmental Law (as defined below);
(ii) the Company has received all permits and approvals with
respect to emissions into the environment and the proper
collection, storage, transport, distribution or disposal of
Wastes (as defined below) and other materials required for the
operation of its business at present operating levels; and
(iii) the Company is not liable or responsible for any
material clean up, fines, liability or expense arising under
any Environmental Law, as a result of the disposal of Wastes
or other materials in or on the property of the Company
(whether owned or leased), or in or on any other property,
including property no longer owned, leased or used by the
Company. As used herein, (a) "Environmental Laws" means,
collectively, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the
Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances
Control Act, as amended, the Clean Air Act, as amended, the
Clean Water Act, as amended, any other "Superfund" or
"Superlien" law or any other federal, or applicable state or
local statute, law, ordinance, code, rule, regulation, order
or decree (foreign or domestic) regulating, relating to, or
imposing liability or standards of conduct concerning, Wastes,
or the environment; and (b) "Wastes" means and includes any
hazardous, toxic or dangerous waste, liquid, substance or
material (including petroleum products and derivatives), the
generation, handling, storage, disposal, treatment or emission
of which is subject to any Environmental Law.
3.21. Agreements and Transactions with Related
Parties. Except as disclosed on Schedule 3.21, the Company is
not, and since January 1, 2002 has not been, a party to any
contract, agreement, lease or transaction with, or any other
commitment to, (a) a shareholder, (b) any person related by
blood, adoption or marriage to shareholder, (c) any director
or officer of the Company, (d) any corporation or other entity
in which any of the foregoing parties has, directly or
indirectly, at least five percent (5.0%) beneficial interest
in the capital stock or other type of equity interest in such
corporation or other entity, or (e) any partnership in which
any such party is a general partner or a limited partner
having a five percent (5%) or more interest therein (any or
all of the foregoing being herein referred to as a "Related
Party" and collectively as the "Related Parties"). Without
limiting the generality of the foregoing, except as set forth
in Schedule 3.21, (a) no Related Party, directly or
indirectly, owns or controls any assets or properties which
are or have since January 1, 2002 been used in the business of
the Company, and (b) no Related Party, directly or indirectly,
engages in or has any significant interest in or connection
with any business: (i) which is or which within the last two
(2) years has been a competitor, customer or supplier of, or
has done business with, the Company, or (ii) which as of the
date hereof sells or distributes products or provides services
which are similar or related to the products or services of
the Company.
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3.22. Business Practices. Except as disclosed on
Schedule 3.22, the Company has not, at any time, directly or
indirectly, made any contributions or payment, or provided any
compensation or benefit of any kind, to any municipal, county,
state, federal or foreign governmental officer or official, or
any other person charged with similar public or quasi-public
duties, or any candidate for political office. The Company's
books, accounts and records (including, without limitation,
customer files, product packaging and invoices) accurately
describe and reflect, in all material respects, the nature and
amount of the Company's products, purchases, sales and other
transactions. Without limiting the generality of the
foregoing, the Company has not engaged, directly or
indirectly, in: (a) the practice known as "double-invoicing"
or the use or issuance of pro-forma or dummy invoices; or (b)
the incorrect or misleading labeling, marketing or sale of
refurbished goods as new goods.
3.23. Shareholder Matters. Except as disclosed on
Schedule 3.23, none of the matters set forth in this Agreement
require the approval of the Company's shareholders.
3.24. Full Disclosure. No representation or warranty
of the Company contained in this Agreement, and none of the
statements or information concerning the Company contained in
this Agreement and the Schedules, contains or will contain any
untrue statement of a material fact nor will such
representations, warranties, covenants or statements taken as
a whole omit a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
To induce the Company to enter into this Agreement and to consummate
the transactions contemplated hereby, the Buyer represents and warrants to and
covenants with the Company as follows:
4.1. Organization. Buyer is a limited liability
company duly organized, validly existing and in good standing
under the laws of Delaware. The Buyer has all requisite power
and authority to execute, deliver and carry out the terms of
this Agreement and the consummation of the transactions
contemplated herein.
4.2. Execution; No Inconsistent Agreements; Etc.
(a) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby have been duly and validly
authorized and approved by Buyer and this Agreement is a valid and binding
agreement of Buyer, enforceable against Buyer in accordance with its terms,
except as such enforcement may be limited by bankruptcy or similar laws
affecting the enforcement of creditors' rights generally, and the availability
of equitable remedies.
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(b) The execution and delivery of this Agreement by Buyer does
not, and the consummation of the transactions contemplated hereby will not,
constitute a breach or violation of the charter or bylaws of Buyer, or a default
under any of the terms, conditions or provisions of (or an act or omission that
would give rise to any right of termination, cancellation or acceleration under)
any material note, bond, mortgage, lease, indenture, agreement or obligation to
which Buyer is a party, pursuant to which any of them otherwise receive
benefits, or by which any of their properties may be bound.
4.3. Securities Laws.
(a) The Buyer is purchasing the Ordinary Shares for investment
purposes and not with a view to the sale or distribution, by public or private
sale or other disposition, and the Buyer has no present intention of selling,
granting any participation in or otherwise distributing or disposing of any of
the Ordinary Shares.
(b) Investment Representations. The Buyer has been offered the
opportunity to ask questions of, and receive answers from the Company's
management, and the Buyer has been given full and complete access to all
available information and data relating to the business and assets of the
Company and has obtained such additional information about the Company as the
Buyer has deemed necessary in order to evaluate the opportunities, both
financial and otherwise, with respect to the Company and, except as set forth
herein, has not relied on any representation, warranty or other statement
concerning the Company and its evaluation of the decision to consummate the
transactions contemplated herein. In its judgment, the Buyer is sufficiently
familiar with the Company to enable the Buyer to proceed with the transactions
contemplated hereby.
(c) The Buyer is an "accredited investor," as such term is
defined in Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act").
(d) The Buyer is a sophisticated investor familiar with the
type of risks inherent in the acquisition of securities such as the shares of
the Company and the Buyer's financial position is such that the Buyer can afford
to retain its shares of Company Ordinary Shares for an indefinite period of time
without realizing any direct or indirect cash return on its investment.
(e) The Buyer acknowledges that the certificates evidencing
the Buyer's Stock will contain a legend substantially as follows:
THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION
OR RESALE, AND MAY NOT BE SOLD, TRANSFERRED, MADE SUBJECT TO A
12
SECURITY INTEREST, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS AND UNTIL REGISTERED UNDER THE ACT, AS AMENDED, OR
EVIDENCE SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT.
5. CONDUCT OF BUSINESS OF THE COMPANY PENDING CLOSING.
The Company covenants and agrees that between the date hereof and the
Closing Date:
5.1. Business in the Ordinary Course. Except as set
forth in Schedule 5.1, the business of the Company shall be
conducted only in the ordinary course, and consistent with
past practice. Without limiting the generality of the
foregoing, and except as set forth in Schedule 5.1 or as
otherwise approved by Buyer:
(a) Except for the transaction contemplated hereby, the
Company shall not enter into any contract, agreement or other arrangement which
would constitute a Material Contract, except for contracts to sell or supply
goods or services to customers in the ordinary course of business at prices and
on terms substantially consistent with the prior operating practices of the
Company;
(b) except for sales of personal property in the ordinary
course of its business, the Company shall not sell, assign, transfer, mortgage,
convey, encumber or otherwise dispose of, or cause the sale, assignment,
transfer, mortgage, conveyance, encumbrance or other disposition of any of the
assets or properties of the Company or any interest therein;
(c) the Company shall not acquire any material assets, except
expenditures made in the ordinary course of business as reasonably necessary to
enable the Company to conduct its normal business operations and to maintain its
normal inventory of goods and materials, at prices and on terms substantially
consistent with current market conditions and prior operating practices;
(d) the books, records and accounts of the Company shall be
maintained in the usual, regular and ordinary course of business on a basis
consistent with prior practices and in accordance with GAAP;
(e) the Company shall use its best efforts to preserve its
business organization, to preserve the good will of its suppliers, customers and
others having business relations with the Company, and to retain the services of
key employees and agents of the Company;
(f) except as it may terminate in accordance with the terms of
this Agreement, the Company shall keep in full force and effect, and not cause a
default of any of its obligations under, each of their contracts and
commitments;
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(g) the Company shall duly comply in all material respects
with all laws applicable to it and to the conduct of its business;
(h) the Company shall not create, incur or assume any
liability or indebtedness, except in the ordinary course of business consistent
with past practices;
(i) other than as contemplated in this Agreement, the Company
shall not apply any of its assets to the direct or indirect payment, discharge,
satisfaction or reduction of any amount payable directly or indirectly to or for
the benefit of any shareholder or any Related Party; and
(j) the Company shall not take or omit to take any action
which would render any of the representations or warranties untrue or
misleading, or which would be a breach of any of the covenants.
5.2. No Material Changes. Except as contemplated in
this Agreement, the Company shall not materially alter its
organization, capitalization, or financial structure,
practices or operations. Without limiting the generality of
the foregoing:
(a) no change shall be made in the articles and memorandum of
association of the Company;
(b) no change shall be made in the authorized or issued
capital stock of the Company;
(c) the Company shall not issue or grant any right or option
to purchase or otherwise acquire any of its capital stock or other securities;
(d) no dividend or other distribution or payment shall be
declared or made with respect to any of the capital stock of the Company; and
(e) no change shall be made affecting the banking arrangements
of the Company.
5.3. Notification. Each party to this Agreement shall
promptly notify the other parties in writing of the
occurrence, or threatened occurrence, of any event that would
constitute a breach or violation of this Agreement by any
party or that would cause any representation or warranty made
by the notifying party in this Agreement to be false or
misleading in any respect. The Company will promptly notify
the Buyer of any event that could have a material adverse
effect on the business, assets, financial condition or
prospects of the Company. The Company shall have the right to
update the Schedules to this Agreement immediately prior to
Closing; provided, if such update discloses any breach of a
representation, warranty, covenant or obligation of the
Company, the Buyer shall have the right to then exercise its
available rights and remedies hereunder.
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6. CONDITIONS TO OBLIGATIONS OF ALL PARTIES.
The obligation of Buyer and the Company to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, on or before the
Closing, of each of the following conditions; any or all of which may be waived
in whole or in part by the joint agreement of Buyer and the Company:
6.1. Absence of Actions. No action or proceeding
shall have been brought or threatened before any court or
administrative agency to prevent the consummation or to seek
damages in a material amount by reason of the transactions
contemplated hereby, and no governmental authority shall have
asserted that the within transactions (or any other pending
transaction involving Buyer or the Company when considered in
light of the effect of the within transactions) shall
constitute a violation of law or give rise to material
liability on the part of the Company or the Buyer.
6.2. Consents. The parties shall have received from
any suppliers, lessors, lenders, lien holders or governmental
authorities, bodies or agencies having jurisdiction over the
transactions contemplated by this Agreement, or any part
hereof, such consents, authorizations and approvals as are
necessary for the consummation hereof, including, without
limitation, the consents listed on Schedule 6.2.
7. CONDITIONS TO OBLIGATIONS OF THE BUYER.
All obligations of the Buyer to consummate the transactions
contemplated by this Agreement are subject to the fulfillment and satisfaction
of each and every of the following conditions on or prior to the Closing, any or
all of which may be waived in whole or in part by Buyer:
7.1. Representations and Warranties. The
representations and warranties contained in SECTION 3 of this
Agreement and in any certificate, instrument, schedule,
agreement or other writing delivered by or on behalf of the
Company in connection with the transactions contemplated by
this Agreement shall be true, correct and complete in all
material respects (except for representations and warranties
which are by their terms qualified by materiality, which shall
be true, correct and complete in all respects) as of the date
when made and shall be deemed to be made again at and as of
the Closing Date and shall be true, correct and complete at
and as of such time in all material respects (except for
representations and warranties which are by their terms
qualified by materiality, which shall be true, correct and
complete in all respects).
7.2. Compliance with Agreements and Conditions. The
Company shall have performed and complied with all material
agreements and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing
Date.
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7.3. Absence of Material Adverse Changes. No material
adverse change in the business, assets, financial condition,
or prospects of the Company shall have occurred, no
substantial part of the assets of the Company not
substantially covered by insurance shall have been destroyed
due to fire or other casualty, and no event shall have
occurred which has had or will have a material adverse effect
on the business, assets, financial condition or prospects of
the Company.
7.4. Board Approval. The Company's Board of Directors
shall have taken the action required by them pursuant to
SECTION 2.1 hereof.
7.5. Registration Rights Agreement. The Company shall
have executed and delivered to the Buyer a Registration Rights
Agreement in a form acceptable to the Buyer.
7.6. Business Development Agreement. The Company
shall have executed and delivered to the buyer an Agreement in
a form acceptable by both parties.
7.7. Corporate Documents. The Company shall have
delivered to the Buyer the articles and memorandum of
association of the Company and each Subsidiary certified by an
appropriate official of its respective jurisdiction of
incorporation as being in effect as of a recent date, the
bylaws of the Company and each Subsidiary certified by an
appropriate officer as in effect at the Closing, the minute
books and corporate records of the Company and each Subsidiary
and the stock ledger of the Company and each Subsidiary.
7.8. Other Documents. The Company shall have
delivered to the Buyer such other documents and instruments as
the Buyer deems reasonably necessary or desirable to
consummate the transactions contemplated hereby.
7.9. Certificate of the Company. The Company shall
have executed and delivered, or caused to be executed and
delivered, to the Buyer one or more certificates, dated the
Closing Date, certifying in such detail as the Buyer may
reasonably request to the fulfillment and satisfaction of the
conditions specified in SECTIONS 7.1 THROUGH 7.9 above.
All documents delivered to the Buyer shall be in form and substance
reasonably satisfactory to the Buyer.
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8. CONDITIONS TO OBLIGATIONS OF THE COMPANY.
All of the obligations of the Company to consummate the transactions
contemplated by this Agreement are subject to the fulfillment and satisfaction
of each and every of the following conditions on or prior to the Closing, any or
all of which may be waived in whole or in part by the Company:
8.1. Representations and Warranties. The
representations and warranties contained in SECTION 4 of this
Agreement and in any certificate, instrument, schedule,
agreement or other writing delivered by or on behalf of Buyer
in connection with the transactions contemplated by this
Agreement shall be true and correct in all material respects
(except for representations and warranties which are by their
terms qualified by materiality, which shall be true, correct
and complete in all respects) when made and shall be deemed to
be made again at and as of the Closing Date and shall be true
at and as of such time in all material respects (except for
representations and warranties which are by their terms
qualified by materiality, which shall be true, correct and
complete in all respects).
8.2. Compliance with Agreements and Conditions. Buyer
shall have performed and complied with all material agreements
and conditions required by this Agreement to be performed or
complied with by Buyer prior to or on the Closing Date.
8.3. Certificate of Buyer. The Buyer shall have
delivered to the Company a certificate, executed by an
executive officer and dated the Closing Date, certifying in
such detail as counsel for the Company may reasonably request
to the fulfillment and satisfaction of the conditions
specified in SECTIONS 8.1 THROUGH 8.2 above.
9. INDEMNITY.
9.1. Indemnification by the Company. The Company
(hereinafter collectively called the "Company Indemnitor")
shall defend, indemnify and hold harmless the Buyer, its
direct and indirect parent corporations, subsidiaries and
affiliates, their officers, members, directors, employees,
attorneys and agents (hereinafter collectively called "Buyer
Indemnitees") against and in respect of any and all loss,
damage, liability, fine, penalty, cost and expense, including
reasonable attorneys' fees and amounts paid in settlement
(collectively, "Buyer Losses"), suffered or incurred by any
Buyer Indemnitee by reason of, or arising out of:
(a) any misrepresentation, breach of warranty or breach or
nonfulfillment of any covenant, obligation or agreement of the Company contained
in this Agreement or in any certificate, schedule, instrument or document
delivered to Buyer by or on behalf of the Company pursuant to the provisions of
this Agreement (without regard to materiality thresholds contained therein); and
17
(b) any liabilities of the Company of any nature whatsoever
(including tax liability, penalties and interest), whether accrued, absolute,
contingent or otherwise, (i) existing as of the date of the 2003 Company Balance
Sheet, and required to be shown therein in accordance with GAAP, to the extent
not reflected or reserved against in full in the 2003 Company Balance Sheet; or
(ii) arising or occurring between December 31, 2003 and the Closing Date, except
for liabilities arising in the ordinary course of business, none of which shall
have a material adverse effect on the Company.
(c) Indemnification by Buyer. The Buyer (hereinafter called
the "Buyer Indemnitor") shall defend, indemnify and hold harmless the Company,
its direct and indirect parent corporations, subsidiaries and affiliates, their
officers, members, directors, employees, attorneys and agents (hereinafter
called "Company Indemnitee") against and in respect of any and all loss, damage,
liability, fine, penalty, cost and expense, including reasonable attorneys' fees
and amounts paid in settlement (collectively, "Company Losses"), suffered or
incurred by Company Indemnitee by reason of or arising out of any
misrepresentation, breach of warranty or breach or non-fulfillment of any
material covenant, obligation or agreement of Buyer contained in this Agreement
or in any other certificate, schedule, instrument or document delivered to the
Company by or on behalf of Buyer pursuant to the provisions of this Agreement
(without regard to materiality thresholds contained therein).
9.2. Defense of Claims.
(a) Each party seeking indemnification hereunder (an
"Indemnitee"): (i) shall provide the other party or parties (the "Indemnitor")
written notice of any claim or action by a third party for which an Indemnitor
may be liable under the terms of this Agreement, within ten (10) days after such
claim or action arises and is known to Indemnitee, and (ii) shall give the
Indemnitor a reasonable opportunity to participate in any proceedings and to
settle or defend any such claim or action. The expenses of all proceedings,
contests or lawsuits with respect to such claims or actions shall be borne by
the Indemnitor. If the Indemnitor wishes to assume the defense of such claim or
action, the Indemnitor shall give written notice to the Indemnitee within ten
(10) days after notice from the Indemnitee of such claim or action, and the
Indemnitor shall thereafter assume the defense of any such claim or liability,
through counsel reasonably satisfactory to the Indemnitee, provided that
Indemnitee may participate in such defense at their own expense, and the
Indemnitor shall, in any event, have the right to control the defense of the
claim or action. The failure of an Indemnitee to give any notice required by
this Section shall not affect any of such party's rights under this Section or
otherwise, except and to the extent that such failure is actually prejudicial to
the rights or obligations of the Indemnitor.
(b) If the Indemnitor shall not assume the defense of, or if
after so assuming it shall fail to defend, any such claim or action, the
Indemnitee may defend against any such claim or action in such manner as they
may deem appropriate and the Indemnitees may settle such claim or litigation on
such terms as they may deem appropriate but subject to the Indemnitor's
approval, such approval not to be unreasonably withheld; provided, however, that
any such settlement shall be deemed approved by the Indemnitor if the Indemnitor
fails to object thereto, by written notice to the Indemnitee, within fifteen
(15) days after the Indemnitor's receipt of a written summary of such
settlement. The Indemnitor shall promptly reimburse the Indemnitee for the
amount of all expenses, legal and otherwise, incurred by the Indemnitee in
connection with the defense and settlement of such claim or action.
18
(c) If a non-appealable judgment is rendered against any
Indemnitee in any action covered by the indemnification hereunder, or any lien
attaches to any of the assets of any of the Indemnitee, the Indemnitor shall
immediately upon such entry or attachment pay such judgment in full or discharge
such lien unless, at the expense and direction of the Indemnitor, an appeal is
taken under which the execution of the judgment or satisfaction of the lien is
stayed. If and when a final judgment is rendered in any such action, the
Indemnitor shall forthwith pay such judgment or discharge such lien before any
Indemnitee is compelled to do so.
9.3. Waiver. The failure of any Indemnitee to give
any notice or to take any action hereunder shall not be deemed
a waiver of any of the rights of such Indemnitee hereunder,
except to the extent that Indemnitor is actually prejudiced by
such failure.
10. TERMINATION.
10.1. Termination. This Agreement may be terminated
at any time on or prior to the Closing:
(a) By mutual consent of Buyer and the Company; or
(b) At the election of Buyer if: (i) a Company has breached or
failed to perform or comply with any of its representations, warranties,
covenants or obligations under this Agreement; or (ii) any of the conditions
precedent set forth in SECTION 6 OR 7 is not satisfied as and when required by
this Agreement; or (iii) the Closing has not been consummated by September 13,
2004; or
(c) At the election of the Company if: (i) Buyer has breached
or failed to perform or comply with any of its representations, warranties,
covenants or obligations under this Agreement; or (ii) any of the conditions
precedent set forth in SECTION 6 OR 8 is not satisfied as and when required by
this Agreement; or (iii) if the Closing has not been consummated by September
13, 2004.
10.2. Manner and Effect of Termination. Written
notice of any termination ("Termination Notice") pursuant to
this SECTION 10 shall be given by the party electing
termination of this Agreement ("Terminating Party") to the
other party or parties (collectively, the "Terminated Party"),
and such notice shall state the reason for termination. The
party or parties receiving Termination Notice shall have a
period of ten (10) days after receipt of Termination Notice to
cure the matters giving rise to such termination to the
reasonable satisfaction of the Terminating Party. If the
matters giving rise to termination are not cured as required
hereby, this Agreement shall be terminated effective as of the
close of business on the tenth (10th) day following the
Terminated Party's receipt of Termination Notice. Upon
termination of this Agreement prior to the consummation of the
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Closing and in accordance with the terms hereof, this
Agreement shall become void and of no effect, and none of the
parties shall have any liability to the others, except that
nothing contained herein shall relieve any party from: (a) its
obligations under SECTIONS 2.3 AND 2.4; or (b) liability for
its intentional breach of any representation, warranty or
covenant contained herein, or its intentional failure to
comply with the terms and conditions of this Agreement or to
perform its obligations hereunder.
20
11. MISCELLANEOUS.
11.1. Notices.
(a) All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given upon receipt if delivered in person, or upon the expiration of
two (2) days after the date sent, if sent by federal express (or similar
overnight courier service) to the parties at the following addresses:
(i) If to Company:
iPoint-Media Ltd.
0x Xxxxxxxx Xxxxxx
Xxx-Xxxx 00000, Xxxxxx
Attention: Muki Xxxxxx
Telephone: 000-0-0000000
Facsimile: 000-0-0000000
with a copy to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the Buyer:
NeoMedia Technologies, Inc.
0000 Xxxxxx Xxxxxx Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
President & Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
21
With a copy to:
Xxxxxxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Notices may also be given in any other manner permitted by
law, effective upon actual receipt. Any party may change the address to which
notices, requests, demands or other communications to such party shall be
delivered or mailed by giving notice thereof to the other parties hereto in the
manner provided herein.
11.2. Survival. The representations, warranties,
agreements and indemnifications of the parties contained in
this Agreement or in any writing delivered pursuant to the
provisions of this Agreement shall survive any investigation
heretofore or hereafter made by the parties and the
consummation of the transactions contemplated herein and shall
continue in full force and effect after the Closing.
11.3. Counterparts; Interpretation. This Agreement
may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which shall constitute
one and the same instrument. This Agreement supersedes all
prior discussions and agreements between the parties with
respect to the subject matter hereof, and this Agreement
contains the sole and entire agreement among the parties with
respect to the matters covered hereby. All Schedules hereto
shall be deemed a part of this Agreement. This Agreement shall
not be altered or amended except by an instrument in writing
signed by or on behalf of all of the parties hereto. No
ambiguity in any provision hereof shall be construed against a
party by reason of the fact it was drafted by such party or
its counsel. For purposes of this Agreement: "herein",
"hereby", "hereunder", "herewith", "hereafter" and
"hereinafter" refer to this Agreement in its entirety, and not
to any particular subsection or paragraph. References to
"including" means including without limiting the generality of
any description preceding such term. Nothing expressed or
implied in this Agreement is intended, or shall be construed,
to confer upon or give any person other than the parties
hereto any rights or remedies under or by reason of this
Agreement.
11.4. Governing Law. This Agreement shall be governed
by and interpreted in accordance with the laws of the State of
Florida without regard to the principles of conflict of laws.
The parties further agree that any action between them shall
be heard exclusively in Xxx County, Florida, and expressly
consent to the jurisdiction and venue of the Superior Court of
22
Florida, sitting in Xxx County, Florida and the United States
District Court of Florida, sitting in Ft. Xxxxx, Florida, for
the adjudication of any civil action asserted pursuant to this
paragraph. Each party hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of any such action in
the forum selected hereby.
11.5. Successors and Assigns; Assignment. This
Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors,
legal representatives, and successors; provided, however, that
the Company may not assign this Agreement or any rights
hereunder, in whole or in part.
11.6. Partial Invalidity and Severability. All rights
and restrictions contained herein may be exercised and shall
be applicable and binding only to the extent that they do not
violate any applicable laws and are intended to be limited to
the extent necessary to render this Agreement legal, valid and
enforceable. If any terms of this Agreement not essential to
the commercial purpose of this Agreement shall be held to be
illegal, invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the parties that the
remaining terms hereof shall constitute their agreement with
respect to the subject matter hereof and all such remaining
terms shall remain in full force and effect. To the extent
legally permissible, any illegal, invalid or unenforceable
provision of this Agreement shall be replaced by a valid
provision which will implement the commercial purpose of the
illegal, invalid or unenforceable provision.
11.7. Waiver. Any term or condition of this Agreement
may be waived at any time by the party which is entitled to
the benefit thereof, but only if such waiver is evidenced by a
writing signed by such party. No failure on the part of a
party hereto to exercise, and no delay in exercising, any
right, power or remedy created hereunder, shall operate as a
waiver thereof, nor shall any single or partial exercise of
any right, power or remedy by any such party preclude any
other future exercise thereof or the exercise of any other
right, power or remedy. No waiver by any party hereto to any
breach of or default in any term or condition of this
Agreement shall constitute a waiver of or assent to any
succeeding breach of or default in the same or any other term
or condition hereof.
11.8. Headings. The headings as to contents of
particular paragraphs of this Agreement are inserted for
convenience only and shall not be construed as a part of this
Agreement or as a limitation on the scope of any terms or
provisions of this Agreement.
11.9. Finder's Fees. The Buyer represents to the
Company that no broker, agent, finder or other party has been
retained by it in connection with the transactions
contemplated hereby and that no other fee or commission has
23
been agreed by the Buyer to be paid for or on account of the
transactions contemplated hereby. The Company represents to
the Buyer that no broker, agent, finder or other party has
been retained by the Company in connection with the
transactions contemplated hereby and that no other fee or
commission has been agreed by the Company to be paid for or on
account of the transactions contemplated hereby.
11.10. Gender. Where the context requires, the use of
the singular form herein shall include the plural, the use of
the plural shall include the singular, and the use of any
gender shall include any and all genders.
11.11. Currency. All foreign currency amounts
required to be converted to U.S. Dollars for purposes of this
Agreement shall be converted in accordance with GAAP.
11.12. Acceptance by Fax. This Agreement shall be
accepted, effective and binding, for all purposes, when the
parties shall have signed and transmitted to each other, by
telecopier or otherwise, copies of the signature pages hereto.
11.13. Attorneys Fees. If any legal action or other
proceeding is brought for the enforcement of this Agreement,
or because of an alleged dispute, breach, default or
misrepresentation in connection with any provision of this
Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, court costs and all expenses
(including, without limitation, all such fees, costs and
expenses incident to appellate, bankruptcy, post-judgment and
alternative dispute resolution proceedings), incurred in that
action or proceeding, in addition to any other relief to which
such party may be entitled.
11.14. NO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
PARTIES' ACCEPTANCE OF THIS AGREEMENT.
24
IN WITNESS WHEREOF, the parties have executed this Investment Agreement
or caused this Investment Agreement to be duly executed by their duly authorized
officers as of the day and year first above written.
BUYER:
NEOMEDIA TECHNOLOGIES, INC.
By:________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief
Executive Officer
COMPANY:
IPOINT-MEDIA LTD.
By:________________________________
Name:
Title:
25
