NeoMedia Technologies, Inc.
Exhibit 10.51
Letter Agreement by and between Xxxxxxxx & Xxxxxxxx, Inc.
and NeoMedia Technologies, Inc. Dated March 20, 1997
16
[LOGO] DOMINICK& XXXXXXXX
INCORPORATED
MEMBER PRINCIPAL EXCHANGES
FINANCIAL SQUARE
00 XXX XXXX
XXX XXXX, XX 00000
TEL 000 000 0000
FAX 000 000 0000
March 20, 1997
Xx. Xxxxxxx X. Xxxx
Chairman, Chief Executive Officer & President
NeoMedia Technologies, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxx, XX 00000
Dear Xxxx:
You have requested that Xxxxxxxx & Xxxxxxxx, Incorporated ("Xxxxxxxx") act as a
non-exclusive financial advisor for NeoMedia Technologies, Inc.("NMT"), on an
on-going basis. We have had certain discussions concerning our role as NMT's
financial advisor and, in this regard, we are pleased to confirm the following:
1. Xxxxxxxx will act as financial advisor for NMT.
2. In its capacity as financial advisor, Xxxxxxxx will be available to advise
NMT on investment banking and other matters such as mergers, acquisitions,
joint ventures, potential public and private financings, bank borrowings,
licensing and other business arrangements.
3. As part of its on-going financial advisory relationship, Xxxxxxxx will be
available to provide merger and acquisition or joint venture advisory
services for NMT. In the event NMT uses Dominick's advisory services or
sources and (a) acquires in excess of 25% of the stock or assets of
another entity, or (b) another entity acquires in excess of 25% of the
stock or assets of NMT, Xxxxxxxx shall be entitled to its normal merger and
acquisition fee of 3% of the total value of such transaction. Should NMT
and such a merger or acquisition candidate undertake a sales, licensing,
joint venture or other similar transaction which does not involve a merger
or acquisition, NMT and Xxxxxxxx agree to negotiate an appropriate closing
fee, which would be anticipated to be in the range of $150,000 to $500,000.
Such fees shall be payable in cash at the time of the consummation of any
such transaction, and will be covered in a separate agreement.
[LOGO] DOMINICK& XXXXXXXX
INCORPORATED
Xx. Xxxxxxx X. Xxxxx
MEMBER PRINCIPAL EXCHANGES Page 2
March 20, 1996
4. As part of its financial advisory relationship, Xxxxxxxx will seek, at
appropriate times, to introduce NMT to sources that will consider providing
financing to NMT. Should NMT use such financing sources, Xxxxxxxx shall be
entitled to its normal cash placement fee for such transactions. Typical
fees, as a percentage of the fair market value of consideration raised, are
1% for bank financing; 6% for public or private debt financing; and 8% for
equity offerings. Payments of financing fees are to be made in cash at
closing. Specific financing fees will be covered in a separate agreement.
5. Fees described in paragraphs three and four herein shall be payable to
Xxxxxxxx for any transaction described therein with any party or entity
with whom discussions were held during the term of this engagement who was
introduced by Xxxxxxxx, and which is consummated during the first six month
period following any termination of this engagement. Such fees shall be 60%
of the indicated amount if the transaction is closed in the second six
months, 30% in the third six months, and 15% in the fourth six months
following termination of this engagement.
6. Xxxxxxxx will receive reimbursement for all of its reasonable out-of-pocket
expenses incurred as a result of its activities for and on behalf of NMT,
to be reimbursed within 30 days of invoice.
7. Xxxxxxxx and/or its assigns will purchase for $200.00 a warrant to purchase
375,000 common shares of NMT immediately upon approval of this agreement by
the NMT Board of Directors. The warrant is exercisable at $7.375 per share
at any time at the holder's option until November 25, 2001, and shall be
substantially subject to the terms of the warrants described in the NMT
prospectus dated November 25, 1996. The holders of any shares received upon
exercise of the warrant will have typical "piggy-back" registration rights
at any time NMT files a registration statement.
8. NMT will pay Xxxxxxxx for its financial advisory services, over and above
any transaction consummation fees, an initial engagement fee of $15,000
upon execution of this agreement. Further, NMT agrees to pay Xxxxxxxx a
quarterly retainer fee of $15,000, payable at the start of each quarterly
period, commencing May 1, 1997. NMT will pay a supplemental $5,000 fee at
the start of each quarterly period in which NMT is scheduled to visit
Dominick's European branch offices.
9. NMT shall not issue any press release, statement, notice, document or other
instrument referring to or mentioning Xxxxxxxx without Dominick's prior
written approval, except as required by securities laws.
[LOGO] DOMINICK& XXXXXXXX
INCORPORATED Xx. Xxxxxxx X. Xxxxx
Page 3
MEMBER PRINCIPAL EXCHANGES March 20, 1996
10. As Xxxxxxxx will be acting on NMT's behalf, NMT agrees to indemnify and
hold harmless Xxxxxxxx (including any afffliated companies and respective
officers, directors, employees and controlling persons) from and against
all claims, liabilities, losses, damages and expenses (including reasonable
expenses of counsel) as they are incurred in connection with any
proceeding, whether or not Xxxxxxxx is a party thereto, relating to or
arising out of such engagement or Dominick's role in connection therewith.
NMT will not, however, be responsible for any such claims, liabilities,
losses, damages or expenses to the extent that they result primarily from
actions taken or omitted to be taken by Xxxxxxxx in bad faith or from its
or their gross negligence. The foregoing indemnification is effective
immediately in respect of all events occurring or omitted prior to or after
the date hereof.
11. This agreement shall be governed by the laws of the State of New York.
12. This agreement, excluding the warrant described in paragraph seven above
and the indemnification described in paragraph ten above, may be canceled
by either NMT or Xxxxxxxx at any time by notification of termination in
writing; provided that if Xxxxxxxx terminates its activities hereunder
before October 1, 1997, then the number of warrants to which Xxxxxxxx
shall be entitled shall be reduced to 187,500.
We look forward to a long and mutually rewarding relationship and we are
confident that we can assist NMT in various aspects of its business and its
intended growth.
Very truly yours,
XXXXXXXX & XXXXXXXX INCORPORATED
By:/s/ XXXX X. XXXX
---------------------------
Xxxx X. Xxxx
Executive Vice President
The foregoing is agreed to
and accepted, subject to
approval by NMT's Board of Directors:
NEOMEDIA TECHNOLOGIES, INC.
/s/ XX. XXXXXXX X. XXXXX
By:------------------------
Xx. Xxxxxxx X. Xxxxx
Chairman, Chief Executive
Officer and President
