AGREEMENT
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THIS AGREEMENT (this "Agreement") is made effective as of September 6,
2006, by and between NeoMedia Technologies, Inc., a Delaware corporation (the
"Company") and CORNELL CAPITAL PARTNERS, LP, a Delaware limited partnership (the
"Investor" and together with the Company, the "Parties" and each, a "Party").
RECITALS:
WHEREAS, the Parties entered into an Investment Agreement (the
"Investment Agreement") pursuant to which the Company issued to the Investor
Twenty-Two Million Dollars ($22,000,000) of the Company's Series C Preferred
Shares on February 17, 2006 (the "Transaction Date"); and
WHEREAS, the Parties acknowledge and agree that pursuant to the
Investment Agreement, the Investor is obligated to purchase from the Company,
and the Company has the right to sell to the Investor, an additional Five
Million Dollars ($5,000,000) of Series C Preferred Shares of the Company on the
date the registration statement, which shall be filed pursuant to that certain
Investor Registration Rights Agreement, of even date with the Investment
Agreement, is declared effective by the United States Securities and Exchange
Commission (the "Additional Funding"); and
WHEREAS, the Parties desire to terminate all further obligations of the
Investor to fund to the Company, and the right of the Company to receive from
the Investor, the Additional Funding.
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants contained herein and in the Investment Agreement and other good and
valuable consideration, receipt of which is hereby acknowledged, the Parties
agree as follows:
AGREEMENT:
1. Termination. The Parties hereby agree to terminate the obligation of
the Investor to fund to the Company, and the right of the Company to receive
from the Investor, the Additional Funding under or with respect to the
Investment Agreement or any and all documents entered into by the Parties on
February 17, 2006 in connection with the Investment Agreement (collectively, the
"Transaction Documents"). As a result of this provision, neither the Company nor
the Investor shall have any further rights or obligations with respect to the
Additional Funding under or with respect to the Transaction Documents. The
Company acknowledges and agrees that this Agreement shall not effect or limit
the Company's obligations, representations and/or warranties under the
Investment Agreement and/or the Investor Registration Rights Agreement, dated
February 17, 2006, by and between the Company and the Investor, or any other
agreements in connection with the Investor's purchase of shares of the Company's
Series C Preferred Stock.
2. Recitals. The Recitals herein above are hereby incorporated into
this Agreement as if fully stated herein.
3. Governing Law; Jurisdiction; Jury Trial. 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.
The Parties hereby irrevocably submit to the non-exclusive jurisdiction and
venue of the Superior Court of New Jersey, sitting in Hudson County and the
United States 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 with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waive, and agree 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. The Parties hereby irrevocably waive personal service of process and
consent 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 set
forth in the Investment Agreement and agree 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. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY.
4. Counterparts. This Agreement may be executed in two (2) or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
Party and delivered to the other Party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
5. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
6. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and assigns.
7. Further Assurances. Each Party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other Party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement.
8. No Strict Construction. The language used in this Agreement is the
language chosen by the Parties to express their mutual intent, and no rules of
strict construction will be applied against any Party.
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9. Changes to the Terms of this Agreement. This Agreement and any
provision hereof may only be amended by an instrument in writing signed by the
Parties. The term "Agreement" and all reference thereto, as used throughout this
instrument, shall mean this instrument as originally executed, or if later
amended or supplemented, then as so amended or supplemented.
10. Failure or Indulgence Not Waiver. No failure or delay in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties have signed and delivered this
Agreement on the date first set forth above.
NEOMEDIA TECHNOLOGIES, INC.
By: /s/ Charles T. Jensen
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Name: Charles T. Jensen
Title: Chief Executive Officer
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ CORNELL CAPITAL PARTNERS, LP
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Name: Mark A. Angelo
Title: Portfolio Manager
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