FIRST AMENDMENT TO INVESTMENT AGREEMENT BY AND BETWEEN NEOMEDIA TECHNOLOGIES, INC. AND YA GLOBAL INVESTMENTS, L.P.
Exhibit 10.1
FIRST
AMENDMENT TO INVESTMENT AGREEMENT
BY
AND BETWEEN
NEOMEDIA
TECHNOLOGIES, INC.
AND
YA
GLOBAL INVESTMENTS, L.P.
This First Amendment to Investment
Agreement (this “Amendment”) is made
and entered into by and between NeoMedia Technologies, Inc., a Delaware
corporation (the “Company”), and YA
Global Investments, L.P., a Cayman Islands exempted limited partnership (“YA Global”),
effective as of March 5, 2010. The Company and YA Global may be individually
referred to as a “Party” or
collectively as the “Parties”.
RECITALS
WHEREAS, the Parties entered
into that certain investment agreement, dated January 5, 2010 (the “Agreement”);
WHEREAS, Section 15.3 of the
Agreement provides that the terms of the Agreement may be modified as agreed to
in writing as executed by the Parties; and
WHEREAS, the Parties desire to
amend the Agreement as set forth herein.
NOW THEREFORE, in
consideration of the premises and the mutual promises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Party hereby agrees as follows:
Recitals. The recitals stated above
are true and correct and incorporated hereunto the body of this Amendment as if
fully stated herein.
Capitalized
Terms. Capitalized terms
not defined in this Amendment shall have the meaning given to them in the
Agreement.
Amendment
of Section 6.23. The Parties agree
that Section
6.23 of the Agreement shall be amended to read, in its
entirety:
Shareholder
Matters. The Buyer acknowledges that the Company requires
shareholder approval to effectuate a reverse stock split, reduce the par value
of the Company’s Common Stock and to maintain its amount of authorized shares of
Common Stock in an amount of at least 5,000,000,000 shares. The
Company will seek to effect such shareholder approval within ninety (90) days
after the date hereof. These actions are required in order for the
Company to have sufficient shares to reserve for conversion
hereunder.
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Amendment
of Section 6.25.
The Parties agree that Section 6.25 of the
Agreement shall be amended to read, in its entirety:
Reverse Stock
Split. Within 90 calendar days from the date hereof, the
Company shall have taken all steps to effectuate and shall have consummated a 1
share for 100 shares reverse stock split of its Common Stock.
Amendment
to Section 6.26.
The Parties agree that Section 6.26 of the
Agreement shall be amended to read, in its entirety:
Par
Value. Within 90 calendar days from the date hereof the
Company shall have taken all steps to effectuate and shall have reduced the par
value of its Common Stock to $0.001 per share.
Addition
of Section 6.28.
The Parties agree that Section 6.28 of the
Agreement shall be added to read, in its entirety:
Authorized Common
Stock. Within 90 calendar days from the date hereof, the Company shall
have taken all steps to effectuate and shall have fixed the amount of authorized
shares of the Company’s Common Stock in an amount of at least 5,000,000,000
shares.
Amendment
to Section 10.5.
The Parties agree that Section 10.5 of the
Agreement shall be amended to read, in its entirety:
Board
Approval. The Company’s Board of Directors shall have taken
the action required by them pursuant to this Agreement, including an amendment
to the Company’s articles of incorporation to adopt the rights and preferences
of the Series D Preferred Shares, authorize issuance of the Series D Preferred
Shares and the Conversion Shares to be issued upon conversion of the Series D
Preferred Shares. Within ninety (90) days of the date hereof, the
Company will seek to effect shareholder approval of a reverse stock split, a
reduction in par value and to fix its authorized shares of Common Stock at an
amount of at least 5,000,000,000 shares. Upon such shareholder
approval the Company will reserve the appropriate number of Conversion Shares to
be issued upon the conversion of the Series D Preferred Shares.
Counterparts. This Amendment
may be executed in one or more counterparts, each of which shall be deemed to be
an original but all of which together shall constitute one and the same
instrument.
Reaffirmation
of Other Terms and Conditions. Except as
expressly modified or contradicted by this Amendment, all other terms and
conditions of the Agreement and all exhibits and schedules thereto (if any)
shall remain in full force and effect, unmodified and unrevoked and the same are
hereby reaffirmed and ratified by the Parties as if fully set forth
herein.
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SIGNATURE PAGE FOLLOWS **
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IN WITNESS WHEREOF, the
Parties have caused this First Amendment to Investment Agreement to be executed
on the date first written above.
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NEOMEDIA:
NEOMEDIA
TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X.
Xxxx
Name:
Xxxxxxx X. Xxxx
Its:
Chief Financial Officer
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YA Global:
YA
GLOBAL INVESTMENTS, L.P.
By:
Yorkville Advisors, LLC
Its: Investment
Manager
By: /s/ Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Its: Portfolio
Manager
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