AGREEMENT
AGREEMENT
THIS
AGREEMENT (this
“Agreement”)
is
made effective as of September 6, 2006, by and between NeoMedia Technologies,
Inc., a Delaware corporation (the “Company”)
and
CORNELL
CAPITAL PARTNERS, LP,
a
Delaware limited partnership (the “Investor”
and
together with the Company, the “Parties”
and
each, a “Party”).
Recitals:
WHEREAS,
the
Parties entered into an Investment Agreement (the “Investment
Agreement”)
pursuant to which the Company issued to the Investor Twenty-Two Million Dollars
($22,000,000) of the Company’s Series C Preferred Shares on February 17, 2006
(the “Transaction
Date”);
and
WHEREAS,
the
Parties acknowledge and agree that pursuant to the Investment Agreement, the
Investor is obligated to purchase from the Company, and the Company has the
right to sell to the Investor, an additional Five Million Dollars ($5,000,000)
of Series C Preferred Shares of the Company on the date the registration
statement, which shall be filed pursuant to that certain Investor Registration
Rights Agreement, of even date with the Investment Agreement, is declared
effective by the United States Securities and Exchange Commission (the
“Additional
Funding”);
and
WHEREAS,
the
Parties desire to terminate all further obligations of the Investor to fund
to
the Company, and the right of the Company to receive from the Investor, the
Additional Funding.
NOW,
THEREFORE,
in
consideration of the mutual promises, conditions and covenants contained herein
and in the Investment Agreement and other good and valuable consideration,
receipt of which is hereby acknowledged, the Parties agree as
follows:
Agreement:
1. Termination.
The
Parties hereby agree to terminate the obligation of the Investor to fund to
the
Company, and the right of the Company to receive from the Investor, the
Additional Funding under or with respect to the Investment Agreement or any
and
all documents entered into by the Parties on February 17, 2006 in connection
with the Investment Agreement (collectively, the “Transaction
Documents”).
As a
result of this provision, neither the Company nor the Investor shall have any
further rights or obligations with respect to the Additional Funding under
or
with respect to the Transaction Documents. The Company acknowledges and agrees
that this Agreement shall not effect or limit the Company’s obligations,
representations and/or warranties under the Investment Agreement and/or the
Investor Registration Rights Agreement, dated February 17, 2006, by and between
the Company and the Investor, or any other agreements in connection with the
Investor’s purchase of shares of the Company’s Series C Preferred
Stock.
2. Recitals.
The
Recitals herein above are hereby incorporated into this Agreement as if fully
stated herein.
3. Governing
Law;
Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
Jersey, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New Jersey or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other than the
State of New Jersey. The Parties hereby irrevocably submit to the non-exclusive
jurisdiction and venue of the Superior Court of New Jersey, sitting in Xxxxxx
County and the United States District Court for the District of New Jersey
sitting in Newark, New Jersey, for the adjudication of any dispute hereunder
or
in connection herewith, or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waive, and agree not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding
is
improper. The Parties hereby irrevocably waive personal service of process
and
consent to process being served in any such suit, action or proceeding by
mailing a copy thereof to such Party at the address for such notices to it
set
forth in the Investment Agreement and agree that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
4. Counterparts.
This
Agreement may be executed in two (2) or more identical counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each Party and delivered to the other
Party; provided that a facsimile signature shall be considered due execution
and
shall be binding upon the signatory thereto with the same force and effect
as if
the signature were an original, not a facsimile signature.
5. Headings.
The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
6. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and assigns.
7. Further
Assurances.
Each
Party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other Party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement.
8. No
Strict
Construction.
The
language used in this Agreement is the language chosen by the Parties to express
their mutual intent, and no rules of strict construction will be applied against
any Party.
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9. Changes
to the Terms
of this Agreement.
This
Agreement and any provision hereof may only be amended by an instrument in
writing signed by the Parties. The term "Agreement" and all reference thereto,
as used throughout this instrument, shall mean this instrument as originally
executed, or if later amended or supplemented, then as so amended or
supplemented.
10. Failure
or Indulgence Not Waiver.
No
failure or delay in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any such power, right or privilege preclude other or further exercise thereof
or
of any other right, power or privilege.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF,
the
Parties have signed and delivered this Agreement on the date first set forth
above.
| NEOMEDIA TECHNOLOGIES, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: |
Xxxxxxx X. Xxxxxx |
|
| Title: | Chief Executive Officer | |
| CORNELL CAPITAL PARTNERS, LP | ||
| |
|
|
| By: | Yorkville Advisors, LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: |
Xxxx X. Xxxxxx |
|
| Title: | Portfolio Manager |
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