SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
__________________
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) of the
SECURITIES
EXCHANGE ACT OF 1934
__________________
Date of
Report:
May 1,
2009
NeoMedia Technologies,
Inc.
(Exact
Name of Registrant as Specified in Charter)
Delaware
|
|
0-21743
|
|
36-3680347
|
(State
or other jurisdiction of incorporation)
|
|
(Commission
File Number)
|
|
(IRS
Employer Identification
No.)
|
Two Concourse Parkway, Suite 500,
Atlanta, GA
|
|
30328
|
(Address
of principal executive offices)
|
|
(Zip
code)
|
|
|
|
Registrant's
telephone number, including area code:
|
|
(678) 638-0460
|
|
|
|
Not
Applicable
(Former
Name or Former Address, If Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
|
o
|
Pre-commencement
communications pursuant to Rule 13c-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
|
Item
1.01. Entry Into a Material Definitive Agreement
Second Amended Third Closing
of July 2008 Securities Purchase Agreement
On July
29, 2008 (the “
Closing
Date
”), NeoMedia Technologies, Inc., a Delaware corporation (the "
Company
") entered
into a Securities Purchase Agreement (the “
SPA
”) to issue and
sell secured convertible debentures (the “
Debentures
” and each,
a “
Debenture
”)
to YA Global Investments, L.P. (the “
Investor
”) in the
principal amount of up to Eight Million Six Hundred Fifty Thousand Dollars
($8,650,000) pursuant to the terms of the SPA, by and between the Company and
the Investor, of which the first secured convertible Debenture in the amount of
$2,325,000 was funded on the Closing Date, the second secured convertible
Debenture in the amount of $2,325,000 was funded on October 28, 2008 and a third
Debenture in the amount of $4,000,000 was to be funded on or after January 1,
2009 subject to certain conditions set forth in the SPA.
On April
6, 2009, the Company and the Investor entered into an Amendment Agreement (the
“
Amendment
”)
whereby the SPA was amended in order to reduce the amount of the third secured
convertible Debenture (as discussed above) from $4,000,000 to $1,100,000, and
whereby such Third Closing (as defined in the Amendment) was broken down into
two (2) separate closings, the first to occur on April 6, 2009 pursuant to which
the Investor purchased a secured convertible Debenture in the principal amount
of $550,000 and the second to occur on or after May 1, 2009 pursuant to which
the Investor had the option to purchase a secured convertible Debenture in the
principal amount of $550,000.
Furthermore,
the Amendment reduced the amount of funds to be deposited into escrow in
accordance with the terms of the Amendment, modified certain terms with respect
to the reservation of shares and use of proceeds, and the Investor waived any
event of default that may have occurred as a result of any breach by the Company
of those provisions relating to the reservation of shares and use of proceeds
under the SPA. Lastly, the Company provided to the Investor a release
from all causes of action, suits, debts claims and demands whatsoever known or
unknown, at law, in equity or otherwise, which the Company ever had, now has or
thereafter may have on or prior to April 6, 2009, and any claims for reasonable
attorneys’ fees, penalties, liquidated damages, and indemnification for losses,
liabilities and expenses, in consideration for the Investor’s accommodations
made in the Amendment. A copy of the Amendment is referenced hereto
as Exhibit 10.13.
On May 1,
2009, the Investor exercised its option and the Company issued to the Investor a
secured convertible Debenture in the principal amount of $550,000, a copy of
which is attached hereto as Exhibit 10.15. Such Debenture shall
mature on July 29, 2010 (“
Maturity Date
”). The
Debenture shall accrue interest at a rate equal to fourteen percent (14%) per
annum and such interest shall be paid on the Maturity Date (or sooner as
provided in the Debenture) in cash or, provided that certain Equity Conditions
are satisfied (as such term is defined in the Debenture), in shares of the
Company’s common stock (“
Common Stock
”) at the
applicable Conversion Price (as defined in the Debenture). At any
time after May 1, 2009, the Investor shall be entitled to convert any portion of
the outstanding and unpaid principal and accrued interest thereon into fully
paid and non-assessable shares of Common Stock at a price equal to the lesser of
$0.02 and ninety-five percent (95%) of the lowest volume weighted average price
of the Common Stock during the ten (10) trading days immediately preceding each
conversion date.
The
Company shall not affect any conversion, and the Investor shall not have the
right to convert any portion of the Debenture to the extent that after giving
effect to such conversion, the Investor (together with the Investor’s
affiliates) would beneficially own in excess of 4.99% of the number of shares of
Common Stock outstanding immediately after giving effect to such
conversion.
The
Company shall have the right to redeem a portion or all amounts outstanding
(subject to certain conditions in the Debenture) by paying the amount equal to
the principal amount being redeemed plus a redemption premium equal to ten
percent (10%) of the principal amount being redeemed, and accrued
interest.
In connection with the Second Amended
Third Closing, the Company placed the $50,000 monitoring fee into escrow,
directly from the proceeds of the Seconded Amended Third Closing on May 1, 2009
(the “
Monitoring
Fee
” and as deposited into
escrow, the “
Escrow
Funds
”) which shall be used
to compensate Yorkville Advisors LLC (“
Investment
Manager
”) for monitoring
and managing the purchase and investment made by the Investor, pursuant to the
Investment Manager’s existing advisory obligations to the
Investor. The Company, Investment Manager and the Investor entered
into an Escrow Agreement, dated July 29, 2008 (the “
Escrow
Agreement
”) appointing
David Gonzalez, Esq. as escrow agent (the “
Escrow
Agent
”) to hold the Escrow
Funds and to periodically disburse portions of such Escrow Funds to the
Investment Manager from escrow in accordance with the terms of the Escrow
Agreement, a copy of which is referenced hereto as Exhibit 10.10 (and the
amended Exhibit A thereto is referenced as Exhibit 10.12
hereto).
All of the Debentures are secured by
(a) certain Pledged Property, as such term is defined in that certain Security
Agreement, of even date with the SPA, by and among the Company, each of the
Company’s subsidiaries made a party thereto and the Investor and (b) certain
Patent Collateral, as such term is defined in that certain Patent Security
Agreement, of even date with the SPA, by and among the Company, each of the
Company’s subsidiaries made a party thereto and the Investor. Copies
of the Security Agreement and the Patent Security Agreement are referenced
hereto as Exhibits 10.4 and 10.5, respectively.
In connection with the SPA, the Company
also entered into those certain Irrevocable Transfer Agent Instructions with the
Investor, David Gonzalez, Esq. as escrow agent and WorldWide Stock Transfer,
LLC, the Company’s transfer agent, a copy of which is referenced as Exhibit
10.11 hereto.
ITEM
9.01. FINANCIAL STATEMENTS AND EXHIBITS
(a) Not
applicable.
(b) Not
applicable.
(c) Not
applicable.
(d) Exhibit
No. Description:
|
|
|
|
|
|
|
|
|
|
Exhibit
10.1
|
|
Securities
Purchase Agreement, dated July 29, 2008, by and between the Company and YA
Global Investments, L.P.
|
|
Incorporated
by reference to Exhibit 10.1 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.2
|
|
First
Secured Convertible Debenture, dated July 29, 2008, issued by the Company
to YA Global Investments, L.P.
|
|
Incorporated
by reference to Exhibit 10.2 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.3
|
|
Second
Secured Convertible Debenture, dated October 28, 2008, issued by the
Company to YA Global Investments, L.P.
|
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K
as field with the SEC on November 3, 2008
|
|
|
|
|
|
Exhibit
10.4
|
|
Security
Agreement, dated July 29, 2008, by and among the Company, each of the
Company’s subsidiaries made a party thereto and YA Global Investments,
L.P.
|
|
Incorporated
by reference to Exhibit 10.3 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.5
|
|
Patent
Security Agreement, dated July 29, 2008, by and among the Company, each of
the Company’s subsidiaries made a party thereto and YA Global Investments,
L.P.
|
|
Incorporated
by reference to Exhibit 10.4 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.6
|
|
Warrant
9-1A, dated July 29, 2008, issued by the Company to YA Global Investments,
L.P.
|
|
Incorporated
by reference to Exhibit 10.5 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.7
|
|
Warrant
9-1B, dated July 29, 2008, issued by the Company to YA Global Investments,
L.P.
|
|
Incorporated
by reference to Exhibit 10.6 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.8
|
|
Warrant
9-1C, dated July 29, 2008, issued by the Company to YA Global Investments,
L.P.
|
|
Incorporated
by reference to Exhibit 10.7 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
EXHIBIT
|
|
DESCRIPTION
|
|
LOCATION
|
|
|
|
|
|
Exhibit
10.9
|
|
Warrant
9-1D, dated July 29, 2008, issued by the Company to YA Global Investments,
L.P.
|
|
Incorporated
by reference to Exhibit 10.8 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.10
|
|
Escrow
Agreement, dated July 29, 2008, by and among the Company, YA Global
Investments, L.P., Yorkville Advisors, LLC and David Gonzalez,
Esq.
|
|
Incorporated
by reference to Exhibit 10.9 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.11
|
|
Irrevocable
Transfer Agent Instructions, dated July 29, 2008, by and among the
Company, the Investor, David Gonzalez, Esq. and WorldWide Stock Transfer,
LLC
|
|
Incorporated
by reference to Exhibit 10.10 in the Company’s Current Report on Form 8-K
as filed with the SEC on August 4, 2008
|
|
|
|
|
|
Exhibit
10.12
|
|
Revised
Exhibit A
to Escrow Agreement, dated
October 28, 2008
|
|
Incorporated
by reference to Exhibit 10.12 to the Company’s Current Report on Form 8-K
as filed with the SEC on November 3, 2008
|
|
|
|
|
|
Exhibit
10.13
|
|
Amendment
Agreement, dated April 6, 2009, by and between the Company and YA Global
Investments, L.P.
|
|
Incorporated
by reference to Exhibit 10.14 to the Company’s Current Report on Form 8-K
as filed with the SEC on April 13, 2009
|
|
|
|
|
|
Exhibit
10.14
|
|
Third
Secured Convertible Debenture (first amended third closing), dated April
6, 2009, issued by the Company to YA Global Investments,
L.P.
|
|
Incorporated
by reference to Exhibit 10.15 to the Company’s Current Report on Form 8-K
as filed with the SEC on April 13, 2009
|
|
|
|
|
|
Exhibit
10.15
|
|
Fourth
Secured Convertible Debenture (second amended third closing), dated May 1,
2009, issued by the Company to YA Global Investments, L.P.
|
|
Provided
herewith
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
Company has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May
7, 2009
|
NEOMEDIA
TECHNOLGIES, INC.
|
|
|
|
By:
/s/
Michael
Zima
|
|
Name: Michael
Zima
|
|
Its: Chief
Financial Officer
|
NeoMedia Technologies (CE) (USOTC:NEOM)
Historical Stock Chart
From Apr 2024 to May 2024
NeoMedia Technologies (CE) (USOTC:NEOM)
Historical Stock Chart
From May 2023 to May 2024