Exhibit 10.23
SECURED PROMISSORY NOTE
April 8, 2004
Jersey City, New Jersey $1,000,000.00
FOR VALUE RECEIVED, the undersigned, NEOMEDIA TECHNOLOGIES INC., a Delaware
corporation (the "Company"), promises to pay CORNELL CAPITAL PARTNERS, LP (the
"Holder"), at 101 Hudson Street, Suite 3606, Jersey City, New Jersey 07302 or
other address as the Holder shall specify in writing, the principal sum of One
Million Dollars (US$1,000,000.00) and will be payable pursuant to the following
terms:
1. Amount of Note. The face amount of this Promissory Note (this
"Note") shall be payable one hundred eighty (180) calendar days from the date
the Company is in receipt of funds as provided herein., out of the net proceeds
to be received by the Company under that certain Equity Line of Credit Agreement
(the "Equity Line of Credit Agreement") dated as October 27, 2003 between the
Company and the Holder In order to effectuate repayment of this Note the Company
hereby agrees (i) to escrow ten (10) requests for advances under the Equity Line
of Credit Agreement in an amount not less than One Hundred Thousand Dollars
($100,000) (individually referred to as "Advance Notice" collectively referred
to "Advance Notices") and, (ii) to deposit in escrow on the date hereof, twenty
million (20,000,000) shares of the Company's Common Stock (the "Escrowed
Shares"). The Escrowed Shares are only an estimation of the shares of the
Company's common stock which would be necessary to repay the principal amount
and interest due hereunder in the event the Company does not pay the note in
cash. American Stock Transfer is the Transfer Agent. In the event that during
the life of this Note the Escrowed Shares are insufficient to repay all amounts
due hereunder, the Company shall immediately escrow such number of shares of the
Company's common stock sufficient to repay all amounts due hereunder. The
Advance Notices and the Escrowed Shares will be held in escrow by the law firm
of Butler Gonzalez LLP, which shall release such Advance Notices to the Holder
every seven (7) calendar days commencing on the first Monday after the date the
Company is in receipt of funds as provided herein. The Holder may at its sole
discretion retain and apply the net proceeds of each advance (after deducting
any fees owed to the Holder under the terms of the Equity Line of Credit) to the
outstanding balance of this Note as existing from time to time. In the event the
principal amount of this Note plus interest is not repaid within the time period
provided herein the Holder shall forbear on collection of this Note and to seek
any remedies available to it under this Note or at law including, without
limitation, proceeding against the Pledged Property as provided for in the
Security Agreement (the "Security Agreement") dated January 15, 2004, between
the Company and the Holder for a for a period of sixty (60) days. Failure to pay
the obligations in full under this Note within said applicable period shall
result in an event of default and Holder shall have the right to seek any
remedies available to it under this Note or at law including, without
limitation, proceeding against the Pledged Property as provided for in the
Security Agreement. If this Note is not paid in full when due, the outstanding
principal owed hereunder shall be due and payable in full together with interest
thereon at the rate of twenty-four percent (24%) per annum or the highest
permitted by applicable law, if lower. During the term of this Note the Company
shall have the option to repay the amounts due hereunder in immediately
available funds and withdraw any Advance Notices yet to be effected. At the
Holder's option the interest due hereunder shall be paid when due either in
Common Stock or cash.
2. Waiver and Consent. To the fullest extent permitted by law and
except as otherwise provided herein, the Company waives demand, presentment,
protest, notice of dishonor, suit against or joinder of any other person, and
all other requirements necessary to charge or hold the Company liable with
respect to this Note.
3. Costs, Indemnities and Expenses. In the event of default as
described herein, the Company agrees to pay all reasonable fees and costs
incurred by the Holder in collecting or securing or attempting to collect or
secure this Note, including reasonable attorneys' fees and expenses, whether or
not involving litigation, collecting upon any judgments and/or appellate or
bankruptcy proceedings. The Company agrees to pay any documentary stamp taxes,
intangible taxes or other taxes which may now or hereafter apply to this Note or
any payment made in respect of this Note, and the Company agrees to indemnify
and hold the Holder harmless from and against any liability, costs, attorneys'
fees, penalties, interest or expenses relating to any such taxes, as and when
the same may be incurred.
4. Event of Default. Upon an Event of Default (as defined below), the
entire principal balance and accrued interest outstanding under this Note, and
all other obligations of the Company under this Note, shall be immediately due
and payable without any action on the part of the Holder, and the Holder shall
be entitled to seek and institute any and all remedies available to it. No
remedy conferred under this Note upon the Holder is intended to be exclusive of
any other remedy available to the Holder, pursuant to the terms of this Note or
otherwise. No single or partial exercise by the Holder of any right, power or
remedy hereunder shall preclude any other or further exercise thereof. The
failure of the Holder to exercise any right or remedy under this Note or
otherwise, or delay in exercising such right or remedy, shall not operate as a
waiver thereof. An "Event of Default" shall be deemed to have occurred upon the
occurrence of any of the following: (i) the Company should fail for any reason
or for no reason to make payment of the outstanding principal balance plus
accrued interest pursuant to this Note within the time prescribed herein or the
Company fails to satisfy any other obligation or requirement of the Company
under this Note; or (ii) any proceedings under any bankruptcy laws of the United
States of America or under any insolvency, not disclosed to the Holder,
reorganization, receivership, readjustment of debt, dissolution, liquidation or
any similar law or statute of any jurisdiction now or hereinafter in effect
(whether in law or at equity) is filed by or against the Company or for all or
any part of its property.
5. Maximum Interest Rate. In no event shall any agreed to or actual
interest charged, reserved or taken by the Holder as consideration for this Note
exceed the limits imposed by New Jersey law. In the event that the interest
provisions of this Note shall result at any time or for any reason in an
effective rate of interest that exceeds the maximum interest rate permitted by
applicable law, then without further agreement or notice the obligation to be
fulfilled shall be automatically reduced to such limit and all sums received by
the Holder in excess of those lawfully collectible as interest shall be applied
against the principal of this Note immediately upon the Holder's receipt
thereof, with the same force and effect as though the Company had specifically
designated such extra sums to be so applied to principal and the Holder had
agreed to accept such extra payment(s) as a premium-free prepayment or
prepayments.
6. Secured Nature of Note. This Note is secured by all of the assets of
the Company as set forth on Exhibit A to the Security Agreement of even date
herewith between the Company and the Holder and all of the Intellectual Property
of the Company as set forth in the Security Agreement. Without limiting the
foregoing, the Company shall make, execute, acknowledge, deliver and file such
documents and instruments, including, without limitation, a financing statement
on form UCC-1 as may, in the Holder's reasonable judgment, be necessary to
effectuate, complete or perfect, the security interest of the Holder in the
Pledged Property (as defined in the Security Agreement).
7. Cancellation of Note. Upon the repayment by the Company of all of
its obligations hereunder to the Holder, including, without limitation, the face
amount of this Note, plus accrued but unpaid interest, the indebtedness
evidenced hereby shall be deemed canceled and paid in full. Except as otherwise
required by law or by the provisions of this Note, payments received by the
Holder hereunder shall be applied first against expenses and indemnities, next
against interest accrued on this Note, and next in reduction of the outstanding
principal balance of this Note.
8. Severability. If any provision of this Note is, for any reason,
invalid or unenforceable, the remaining provisions of this Note will
nevertheless be valid and enforceable and will remain in full force and effect.
Any provision of this Note that is held invalid or unenforceable by a court of
competent jurisdiction will be deemed modified to the extent necessary to make
it valid and enforceable and as so modified will remain in full force and
effect.
9. Amendment and Waiver. This Note may be amended, or any provision of
this Note may be waived, provided that any such amendment or waiver will be
binding on a party hereto only if such amendment or waiver is set forth in a
writing executed by the parties hereto. The waiver by any such party hereto of a
breach of any provision of this Note shall not operate or be construed as a
waiver of any other breach.
10. Successors. Except as otherwise provided herein, this Note shall
bind and inure to the benefit of and be enforceable by the parties hereto and
their permitted successors and assigns.
11. Assignment. This Note shall not be directly or indirectly
assignable or delegable by the Company. The Holder may assign this Note as long
as such assignment complies with the Securities Act of 1933, as amended.
12. No Strict Construction. The language used in this Note will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party.
13. Further Assurances. Each party hereto will execute all documents
and take such other actions as the other party may reasonably request in order
to consummate the transactions provided for herein and to accomplish the
purposes of this Note.
14. Notices, Consents, etc. Any notices, consents, waivers or other
communications required or permitted to be given under the terms hereof must be
in writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) trading day after deposit
with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to Company: Neomedia Technologies Inc.
2201 2nd Floor - Suite 402
Fort Myers, FL 33901
Attention: Charles T. Jensen
Telephone: (239) 337-3434
Facsimile: (239) 337-3668
With Copy to: Kirkpatrick & Lockhart LLP
201 South Biscayne Blvd. - Suite 2000
Miami, FL 33131-2399
Attention: Clayton E. Parker, Esq.
Telephone: (305) 539-3300
Facsimile: (305) 358-7095
If to the Holder: Cornell Capital Partners, L.P.
101 Hudson Street, Suite 3606
Jersey City, NJ 07302
Attention: Mark A. Angelo
Telephone: (201) 324-1619
Facsimile: (201) 324-1447
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three (3) trading days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
15. Remedies, Other Obligations, Breaches and Injunctive Relief. The
Holder's remedies provided in this Note shall be cumulative and in addition to
all other remedies available to the Holder under this Note, at law or in equity
(including a decree of specific performance and/or other injunctive relief), no
remedy of the Holder contained herein shall be deemed a waiver of compliance
with the provisions giving rise to such remedy and nothing herein shall limit
the Holder's right to pursue actual damages for any failure by the Company to
comply with the terms of this Note. Every right and remedy of the Holder under
any document executed in connection with this transaction may be exercised from
time to time and as often as may be deemed expedient by the Holder. The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Holder and that the remedy at law for any such breach
may be inadequate. The Company therefore agrees that, in the event of any such
breach or threatened breach, the Holder shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach, and specific
performance without the necessity of showing economic loss and without any bond
or other security being required.
16. Governing Law; Jurisdiction. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of New Jersey, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New Jersey or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New Jersey. Each party
hereby irrevocably submits to the exclusive jurisdiction of the Superior Court
for the State of New Jersey sitting in Hudson County, New Jersey and the United
States Federal District Court for the District of New Jersey sitting in Newark,
New Jersey, for the adjudication of any dispute hereunder or in connection
herewith or therewith, or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
17. No Inconsistent Agreements. None of the parties hereto will
hereafter enter into any agreement, which is inconsistent with the rights
granted to the parties in this Note.
18. Third Parties. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person or entity, other than
the parties to this Note and their respective permitted successor and assigns,
any rights or remedies under or by reason of this Note.
19. Waiver of Jury Trial. AS A MATERIAL INDUCEMENT FOR THE HOLDER TO
LOAN TO THE COMPANY THE MONIES HEREUNDER, THE COMPANY HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS NOTE AND/OR ANY
AND ALL OF THE OTHER DOCUMENTS ASSOCIATED WITH THIS TRANSACTION.
20. Entire Agreement. This Note (including the recitals hereto) sets
forth the entire understanding of the parties with respect to the subject matter
hereof, and shall not be modified or affected by any offer, proposal, statement
or representation, oral or written, made by or for any party in connection with
the negotiation of the terms hereof, and may be modified only by instruments
signed by all of the parties hereto.
IN WITNESS WHEREOF, this Note is executed by the undersigned as of the date
hereof.
[Signature to Follow]
IN WITNESS WHEREOF, this Note is executed by the undersigned as of the date
hereof.
NEOMEDIA TECHNOLOGIES INC.
By: /s/ Charles T. Jensen
---------------------
Name: Charles T. Jensen
Title: President & Acting Chief Executive Officer