THIS AGREEMENT (this “ Agreement ”), dated
June 5, 2009 is entered into by and between NEOMEDIA
TECHNOLOGIES INC., a Delaware corporation (the “
Company ”), and YA GLOBAL INVESTMENTS, L.P.
(the “ Buyer ”). Reference is made to
the Securities Purchase Agreement (the “ Securities
Purchase Agreement ”) dated as of July 29, 2008, as
amended on April 6, 2009, between the Company and the
Buyer. All capitalized terms used but not defined herein
shall have the meaning ascribed thereto in the Securities Purchase
Agreement.
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Pursuant to the
Securities Purchase Agreement, the Company has issued and the Buyer
has purchased secured convertible debentures.
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The Company
desires to issue, and the Buyer desires to purchase an additional
convertible debenture in the form attached hereto as Exhibit A (the
“ Additional Debenture ”).
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In order to
induce the Company to issue and the Buyer to purchase the
Additional Debenture, the parties desire to enter into this
Agreement.
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Buyer hereby agree as
follows:
1.
Purchase and Sale of Additional Debenture . In
reliance on the representations and warranties and the terms and
conditions set forth in this Agreement, on the date hereof the
Buyer shall purchase, and the Company shall issue and sell the
Additional Debenture with a face amount of $715,000 for a purchase
price of $715,000. The Additional Debenture shall be in
the form attached hereto as Exhibit A . The
Additional Debenture shall be deemed to be included in term
“Convertible Debentures” as used in the Securities
Purchase Agreement and the other Transaction
Documents. Upon the issuance of the Additional Debenture
the Buyer shall pay the purchase price, minus any fees or expenses
to be deducted from the purchase price as set forth below, by wire
transfer of immediately available funds in accordance with
instructions to be provided by the Company.
2.
Representations and Warranties of Buyer .
(a) The
representations and warranties of the Buyer set forth in Section 2
of the Securities Purchase Agreement are hereby incorporated by
reference with such changes necessary to relate to this Agreement
as if set forth in their entirety herein (the “ Buyer
Representations and Warranties ”). For the
avoidance of doubt, in the Buyer Representations and Warranties
references to “Securities” shall be deemed references
to the Additional Debenture and the shares of Common Stock issuable
upon conversion thereof, references to “Conversion
Shares” shall be deemed to reference the shares of Common
Stock issuable upon conversion of the Additional Debenture, and any
reference to “Transaction Documents” shall be deemed to
include a reference to this Agreement and to the Additional
Debenture.
(b) The
Buyer hereby represents and warrants that except as may otherwise
be disclosed on a disclosure schedule attached hereto, the Buyer
Representations and Warranties are true and correct on the date
hereof (except for representations and warranties that speak as of
a specific date).
3.
Representations, Warranties, and Covenants of Company
.
(a) The
representations and warranties of the Company set forth in Section
3 of the Securities Purchase Agreement are hereby incorporated by
reference with such changes necessar
