Exhibit 4.1
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
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.
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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
(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 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.
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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).
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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 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.
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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 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.
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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 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
affecting the enforcement of creditors' rights generally, and the availability
of equitable remedies.
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(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 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.
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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
agreements and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date.
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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.
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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 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.
18
(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 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.
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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.
2a Habarzel Street
Tel-Aviv 61132, Israel
Attention: Muki Geller
Telephone:972-3-7657265
Facsimile: 972-3-7657368
with a copy to:
Sichenzia Ross Friedman Ference LLP
1065 Avenue of the Americas
New York, New York 10018
Attn: Gregory Sichenzia, Esq.
Telephone: (212) 930-9700
Facsimile: (212) 930-9725
(ii) If to the Buyer:
NeoMedia Technologies, Inc.
2201 Second Street Suite 402
Fort Myers, FL 33901
Attention: Charles T. Jensen
President & Chief Executive Officer
Telephone: (239) 337-3434
Facsimile: (239) 337-3668
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With a copy to:
Kirkpatrick & Lockhart, LLP
201 South Biscayne Blvd.
Miami, FL 33131-2399
Attention: Clayton E. Parker, Esq.
Telephone: (305) 539-3306
Facsimile: (305) 358-7095
(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 consent to the
jurisdiction and venue of the Superior Court of Florida, sitting in
Lee County, Florida and the United States District Court of Florida,
sitting in Fort Myers, 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.
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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 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.
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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.
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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: /s/Charles T. Jensen
Name: Charles T. Jensen
Title: President & Chief Executive Officer
COMPANY:
IPOINT-MEDIA LTD.
By: /s/Muki Geller
Name: Muki Geller
Title: CEO
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