MASTER AMENDMENT AGREEMENT
Exhibit
10.6
This
MASTER
AMENDMENT AGREEMENT
(this
“Amendment Agreement”), effective as of March 27, 2007, supplements and amends
the transaction documents (collectively, the “Transaction
Documents”)
executed and delivered in connection with private placements by NeoMedia
Technologies, Inc., a Delaware corporation (the “Company”),
of
its secured convertible debentures and convertible preferred stock to Cornell
Capital Partners, L.P. (the “Buyer”),
which
securities were issued pursuant to the Securities Purchase Agreement dated
August 24, 2006, the Securities Purchase Agreement dated December 29, 2006,
and
the Investment Agreement dated February 17, 2006, each by and between the
Company and the Buyer (collectively, the “Purchase
Agreements”).
The
Transaction Documents are supplemented, modified, and amended as set forth
in
this Amendment Agreement. Capitalized terms used and not defined in this
Amendment Agreement shall have the respective meanings set forth in the Purchase
Agreements.
RECITALS
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1.
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The
Company and the Buyer are parties to the Purchase Agreements, pursuant
to
which the Company has issued and sold to the Buyer, among other
securities, (i) a secured convertible debenture in the principal
amount of
$5,000,000 on August 24, 2006 (the “August
Debenture”),
(ii) a secured convertible debenture in the principal amount of $2,500,000
on December 29, 2006 (the “December
Debenture,”
and collectively along with the August Debenture, the “Outstanding
Debentures”),
and (iii) 22,000 shares of Series C Convertible Preferred Stock (the
“Preferred
Shares”).
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2.
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In
connection with the Purchase Agreements, the Company and the Buyer
entered
into (i) a Registration Rights Agreement, dated as of August 24,
2006 (the
“August
Registration Rights Agreement”),
(ii) a Registration Rights Agreement, dated as of December 29, 2006
(the
“December
Registration Rights Agreement”)
and (iii) a Registration Rights Agreement, dated as of February 17,
2006
(the “February
Registration Rights Agreement,”
and collectively, along with the August Registration Rights Agreement
and
the December Registration Rights Agreement, the “Registration
Rights Agreements”),
pursuant to which the Company agreed to undertake certain registration
obligations to the Buyer.
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NOW,
THEREFORE, in consideration of the foregoing Recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned parties to this Amendment Agreement, including
the
Company and the Buyer, agree as follows:
Interest
on Outstanding Debentures.
As of March 30, 2007, the accrued and unpaid interest on the Outstanding
Debentures is equal to $365,972 (“Accrued
Interest”)
as set forth in more detail on Exhibit A attached hereto. On the date hereof,
the Company shall pay to the Buyer in immediately available funds all of the
Accrued Interest.
Preferred
Shares Dividends.
The Company agrees and acknowledges that as of March 30, 2007, the accrued
and
unpaid dividends on the Preferred Shares are equal to $1,974,640
(“Accrued
Dividend”)
as set forth in more detail on Exhibit B attached hereto.
Registration
Rights.
The Company and the Buyer agree to the following concerning the obligations
of
each party pursuant to the Registration Rights Agreements:
As
of March 30, 2007, the Company owes to the Buyer Liquidated Damages pursuant
to
the Registration Rights Agreements in the amount of $1,311,814
(“Accrued
Liquidated Damages”)
as set forth in more detail on Exhibit C attached hereto.
On
the date hereof, the Company shall pay to the Buyer in immediately available
funds an amount equal to $1,311,814 in full satisfaction and settlement of
all
Accrued Liquidated Damages.
The
Company agrees to re-file its amended Registration Statement on Form S-3 with
the Commission on or before April 12, 2007 (the “Amended
Filing Deadline”).
The Amended Filing Deadline shall replace the existing Filing Deadline of each
of the Registration Rights Agreements.
The
Company shall use its best efforts to have the Registration Statement declared
effective by the SEC as soon as practicable, but in no event later than May
10,
2007 (the “Amended
Effective Deadline”).
The Amended Effective Deadline shall replace the existing Effective Deadline
of
each of the Registration Rights Agreements.
Liquidated
Damages pursuant to each of the Registration Rights Agreements shall not
continue to accrue unless and until the Company fails to meet the Amended Filing
Deadline or the Amended Effective Deadline.
The
number and allocation of shares to be included on the amended Registration
Statement on Form S-3 referenced above for resale by the Buyer shall be
determined by the Buyer and provided to the Company within two days of the
date
hereof, but in no event shall the Company be required to include more shares
than the maximum number of shares of Common Stock allowed under Rule 415 as
interpreted by the SEC. The number of shares specified by the Buyer pursuant
to
this section shall supersede any specific number of shares previously required
pursuant to the Registration Rights Agreements.
Miscellaneous.
Amendments;
Waivers.
No provision of this Amendment Agreement may be waived or amended except in
a
written instrument signed, in the case of an amendment, by the parties hereto
as
set forth on the signature pages hereto, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this Amendment
Agreement shall be deemed to be a continuing waiver in the future or a waiver
of
any subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such
right.
Amendment
Controls.
If any topic is addressed both in the a Transaction Document (or any document
related thereto) and in this Amendment Agreement, this Amendment Agreement
shall
control.
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Construction.
The headings herein are for convenience only, do not constitute a part of this
Amendment Agreement and shall not be deemed to limit or affect any of the
provisions hereof. The language used in this Amendment Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and
no
rules of strict construction will be applied against any
party.
Governing
Law.
This Amendment shall be governed by and interpreted in accordance with the
laws
of the State of New Jersey without regard to the principles of conflict of
laws.
The parties further agree that any action between them shall be heard in Xxxxxx
County, New Jersey, and expressly consent to the 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 civil action asserted pursuant to this Section.
Execution.
This Amendment Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same document and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart.
Severability.
If any provision of this Amendment Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Amendment Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon
so
agreeing, shall incorporate such substitute provision in this Amendment
Agreement.
Except
as explicitly set forth herein, nothing contained herein shall be construed
as a
waiver of any rights or remedies of the Buyer under any of the Transaction
Documents. The Company and the Buyer hereby agree that the Transaction Documents
remain in full force and effect, as amended in this Amendment Agreement.
(Signature
Page Follows)
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to
be
duly executed by their respective authorized signatories as of the date first
indicated above.
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NEOMEDIA
TECHNOLOGIES, INC.
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By:
/s/ Xxxxx X. Dodge
Name:
Xxxxx X. Dodge
Title:
CFO
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CORNELL
CAPITAL PARTNERS, LP
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By:
Yorkville Advisors, LLC, its Investment Manager
By:
/s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Portfolio Manager
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