SECURITY AGREEMENT (Patent)
(Patent)
THIS
SECURITY AGREEMENT (PATENT)
(“Agreement”),
is
entered into and made effective as of August 24, 2007, by and between
NEOMEDIA
TECHNOLOGIES, INC., a
Delaware corporation with its principal place of business located at 0000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the “Parent”),
and
the each subsidiary of the Parent listed on Schedule I attached hereto (each
a
“Subsidiary,”
and
collectively and together with the Parent, the “Company”),
in
favor of the YA
GLOBAL INVESTMENTS, L.P. (the
“Secured
Party”).
WITNESETH:
WHEREAS,
the
Parent shall issue and sell to the Secured Party, as provided in the Securities
Purchase Agreement between the Parent and the Secured Party dated as of
August 24, 2007 (together with all amendments, supplements,
restatements and other modifications, if any, from time to time made thereto,
the “Securities
Purchase Agreement”),
and
the Secured Party shall purchase secured convertible debentures in the principal
amount equal to $1,775,000 (the “Convertible
Debentures”);
WHEREAS,
to
induce
the Secured Party to enter into the transactions contemplated by the Securities
Purchase Agreement and the Convertible Debentures, Registration Rights Agreement
of even date herewith between the Parent and the Secured Party (the
“Registration
Rights Agreement”),
the
Irrevocable Transfer Agent Instructions among the Parent, the Secured Party,
the
Parent’s transfer agent, and Xxxxx Xxxxxxxx, Esq. (the “Transfer
Agent Instructions”),
a
warrant, dated as of the date hereof, to purchase 75,000,000 shares of the
Parent’s common stock, par value $0.01 per share (the “Warrant”),
and
the letter agreement, dated as of the date hereof, between the Parent and the
Secured Party, repricing the exercise price of previously issued Parent warrants
to the Secured Party and repricing the conversion price of previously issued
Parent convertible debentures to the Secured Party (the “Lender
Agreement”) (collectively
referred to as the “Transaction
Documents”),
each
Company hereby grants to the Secured Party a security interest, and in the
case
of the Parent, grants and extends all previously granted security interests,
in
and to the Patent Collateral (as defined below) to secure all of the
Obligations (as defined below);
WHEREAS,
in
connection with the Securities Purchase Agreement, each Company has agreed
to
provide the Secured Party a general security interest in Pledged Property (as
this term is defined in the Security Agreement by and between each Company
and
the Secured Party, dated August 23, 2006 (together with all amendments,
supplements, restatements and other modifications, if any, from time to time
made thereto, the “Security
Agreement”),and
the
UCC-1 financing statement filed with the Delaware Secretary of State on
August 25, 2006 Initial Filing No. 62970861 and amended on
November 14, 2006 Amendment No. 6396311 3 and UCC-1 financing
statement filed with the Florida Secretary of State on August 25, 2006
Initial Filing No. 200603546313 and amended on November 14, 2006 Amendment
No. 200604142828;
WHEREAS,
the
Company has duly authorized the execution, delivery and performance of this
Agreement;
NOW
THEREFORE,
for
good and valuable consideration, the receipt of which is hereby acknowledged,
the Company agrees as follows:
SECTION
1. Definitions.
Unless
otherwise defined herein otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the
Securities Purchase Agreement.
(a) “Obligations”
shall
have the meaning assigned to it in the Security Agreement.
SECTION
2. Grant
of Security Interest.
For
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, to secure the payment and performance of all of the Obligations
of
the Company, the Company does hereby mortgage, pledge and hypothecate to the
Secured Party and grant to the Secured Party a security interest in all of
the
following property (the “Patent
Collateral”),
now
owned and existing:
(a) all
letters patent and applications for letters patent throughout the world,
including all patent applications in preparation for filing anywhere in the
world and including each patent and patent application referred to in
Schedule
“A”
hereto;
(b) all
reissues, divisions, continuations, continuations-in-part, extensions, renewals
and reexaminations of any of the items described in clause (a);
(c) all
patent licenses and other agreements providing the Company with the right to
use
any of the items of the type referred to in clauses (a) and (b), including
each
patent license referred to in Schedule
“A”
hereto;
(d) the
right
to xxx third parties for past, present or future infringements of any Patent
Collateral described in clauses (a) and (b) and, to the extent applicable,
clause (c); and
(e) all
proceeds of, and rights associated with, the foregoing, (including license
royalties and proceeds of infringement suits), and all rights corresponding
thereto throughout the world.
SECTION
3. Security
Agreement.
This
Agreement has been executed and delivered by each Company for the purpose of
recording the security interest of the Secured Party in the Patent Collateral
relating to patents referred to in Schedule
“A”
with the
United States Patent and Trade Marks Office, to the extent it may be so
registered therein. The security interest granted hereby has been granted as
a
supplement to, and not in limitation of, the security interest granted to the
Secured Party under the Security Agreement. The Security Agreement (and all
rights and remedies of the Secured Party thereunder) shall remain in full force
and effect in accordance with its terms.
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SECTION
4. Release
of Security Interest.
Upon
payment in full of all Obligations the Secured Party shall, at the Company’s
expense, execute and deliver to the Company all instruments and other documents
as may be necessary or proper to release the lien on any security interest
in
the Patent Collateral which has been granted hereunder.
SECTION
5. Acknowledgement.
The
Company does hereby further acknowledge and affirm that the rights and remedies
of the Secured Party with respect to the security interest in the Patent
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which (including the remedies provided for therein)
are incorporated by references herein as if fully set forth herein.
SECTION
6. Securities
Purchase Agreement.
Notwithstanding any other term or provision hereof, in the event that any
provisions hereof contradict and are incapable of being construed in conjunction
with the provisions of the Securities Purchase Agreement, the provisions of
the
Securities Purchase Agreement shall take precedence over those contained herein
and, in particular, if any act of the Company is expressly permitted under
the
Securities Purchase Agreement but is prohibited hereunder, any such act shall
be
permitted hereunder and any encumbrance expressly permitted under the Securities
Purchase Agreement to exist or to remain outstanding shall be permitted
hereunder and thereunder. This instrument, document or agreement may be sold,
assigned or transferred by the Agent in accordance with the terms of the
Securities Purchase Agreement.
SECTION
7. Counterparts.
This
Agreement may be executed by the parties hereto in several counterparts, each
of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
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IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
| COMPANY: | ||
| NEOMEDIA TECHNOLOGIES, INC. | ||
| By: |
/s/
Xxxxx Xxxxxx
|
|
| Name: Xxxxx Xxxxxx | ||
| Title: Interim Chief Financial Officer | ||
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IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
| COMPANY: | ||
| NEOMEDIA MIGRATION, INC. | ||
| By: |
/s/
Xxxxxxx
X. Xxxxxxx
|
|
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Chief Executive Officer | ||
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IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
| COMPANY: | ||
| NEOMEDIA MICRO PAINT REPAIR, INC. | ||
| By: |
/s/
Xxxxxxx X. Xxxxxxx
|
|
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Chief Executive Officer | ||
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IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
| COMPANY: | ||
| NEOMEDIA TELECOM SERVICES, INC. | ||
| By: |
/s/
Xxxxxxx X. Xxxxxxx
|
|
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Chief Executive Officer | ||
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IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
| SECURED PARTY: | ||
| YA GLOBAL INVESTMENTS, L.P. | ||
| By: Yorkville Advisors, LLC | ||
| Its: Investment Manager | ||
| By: |
/s/
Xxxx Xxxxxx
|
|
| Name: Xxxx Xxxxxx | ||
| Title: Investment Manager | ||
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