INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (the "Agreement") is dated as of September 7,
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 40,704 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 13, 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 substantially all the assets of the
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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
20,000,000 Ordinary Shares, of which 297,000 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
t 18 0 (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
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course (with respect to which no material default exists); (b)
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.
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
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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
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affecting the enforcement of creditors' rights generally, and the availability
of equitable remedies.
(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
12
SOLD, TRANSFERRED, MADE SUBJECT TO A 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
15
agreements and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing
Date.
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.
8. CONDITIONS TO OBLIGATIONS OF THE COMPANY.
16
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
18
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.
(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
19
Termination Notice. Upon termination of this Agreement prior to the
consummation of the 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 ______ County, Florida, and expressly
22
consent to the jurisdiction and venue of the Superior Court of
Florida, sitting in Xxx County, Florida and the United States
District Court of Florida, sitting in Fort 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 been agreed by the
23
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:
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25
