Unassociated Document


     

    IRREVOCABLE
TRANSFER AGENT INSTRUCTIONS

    


    May 27,
2010

    


    WorldWide
Stock Transfer , LLC

    433
Hackensack Avenue, Level L

    Hackensack,
New Jersey 07601

    


    RE:           NEOMEDIA
TECHNOLOGIES, INC.

    


    Ladies
and Gentlemen:


     

    Reference
is made to that certain Securities Purchase Agreement (the “Securities Purchase
Agreement”) of even date herewith by and between Neomedia Technologies,
Inc, a Delaware corporation (the “Company”), and YA
Global Investments, LP (the “Buyer”).  Pursuant
to the Securities Purchase Agreement, the Company shall sell to the Buyer, and
the Buyer shall purchase from the Company, a convertible debentures (the “Debenture”) in the
aggregate principal amount of $2, 006,137.04, plus accrued
interest, which are convertible into shares of the Company’s common stock, par
value $.001 per share (the “Common Stock”), at
the Buyer’s discretion.  The Company has also issued to the Buyer
warrants to purchase up to 5,000,000 shares of Common Stock, at the Buyer’s
discretion (the “Warrant”).  These
instructions relate to the following stock or proposed stock issuances or
transfers:

     

    
      	
               
      

            	
              1.

            	
              Shares
      of Common Stock to be issued to the Buyer upon conversion of the Debenture
      (“Conversion
      Shares”) plus the shares of Common Stock to be issued to the Buyer
      upon conversion of accrued interest and liquidated damages into Common
      Stock (the “Interest
      Shares”).

            


    

     

    
      	
               
      

            	
              2.

            	
              Up
      to 5,000,000 shares of Common Stock to be issued to the Buyer upon
      exercise of the Warrant (the “Warrant
      Shares”).

            


    

     

    This
letter shall serve as our irrevocable authorization and direction to WorldWide
Stock Transfer, LLC (the “Transfer Agent”) to
do the following:


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              1.

            	
              Conversion Shares, Warrant
      Shares and Interest Shares.

            


    

     

    
      	
               
      

            	
              a.

            	
              Instructions Applicable to
      Transfer Agent.  With respect to the Conversion Shares,
      Warrant Shares and the Interest Shares, the Transfer Agent shall issue the
      Conversion Shares, Warrant Shares and the Interest Shares to the Buyer
      from time to time upon delivery to the Transfer Agent of a properly
      completed and duly executed Conversion Notice (the “Conversion
      Notice”) in the form attached hereto as Exhibit A to the Debenture,
      or a properly completed and duly executed Exercise Notice  (the
      “Exercise
      Notice”) in the form attached as Exhibit A to the Warrant,
      delivered to the Transfer Agent by the Company or on behalf of the Company
      by David Gonzalez, Esq. as escrow agent (the “Escrow
      Agent”).  Upon receipt of a Conversion Notice or an
      Exercise Notice, the Transfer Agent shall, as soon as reasonably practical
      thereafter, (i) issue and surrender to a common carrier for overnight
      delivery to the address as specified in the Conversion Notice or the
      Exercise Notice, a certificate, registered in the name of the Buyer or its
      designees, for the number of shares of Common Stock to which the Buyer
      shall be entitled as set forth in the Conversion Notice or Exercise
      Notice, or (ii) provided the Transfer Agent is participating in The
      Depository Trust Company (“DTC”) Fast
      Automated Securities Transfer Program, upon the request of the Buyer,
      credit such aggregate number of shares of Common Stock to which the Buyer
      shall be entitled to the Buyer’s or its designees’ balance account with
      DTC through its Deposit Withdrawal At Custodian (“DWAC”) system,
      provided that the Buyer causes its bank or broker to initiate the DWAC
      transaction, and further provided that a certificate representing such
      shares of Common Stock would not be required to bear a legend restricting
      transfer.

            


    

     

    
      	
               
      

            	
              b.

            	
              The Company hereby confirms to
      the Transfer Agent and the Buyer that certificates representing the
      Conversion Shares, Warrant Shares and Interest Shares shall not bear any
      legend restricting transfer and should not be subject to any stop-transfer
      restrictions and shall otherwise be freely transferable on the books and
      records of the Company; provided that Buyer confirm to the Transfer
      Agent and the Company that the Conversion Shares, Warrant Shares and
      Interest Shares have been or will be sold only pursuant to an effective
      registration statement for such securities under the Securities Act of
      1933, as amended (the “Act”), and that the Buyer has complied, or will
      comply, with all applicable prospectus delivery requirements; and further provided that counsel
      to the Company delivers (i) the Notice of Effectiveness set forth in
      Exhibit
      I attached hereto
      and (ii) an opinion of counsel in the form set forth in Exhibit
      II attached hereto,
      and that if the Conversion Shares, Warrant Shares and the Interest Shares
      are not registered for sale under the Act, then the certificates for the
      Conversion Shares, Warrant Shares and Interest Shares shall bear the
      following legend:

            


    

     

    “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS.  THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A
FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO
RULE 144 UNDER SAID ACT.”


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              c.

            	
              In
      the event that counsel to the Company fails or refuses to render an
      opinion as required to issue the Conversion Shares, the Warrant Shares or
      the Interest Shares in accordance with the preceding paragraph (either
      with or without restrictive legends, as applicable), then the Company
      irrevocably and expressly authorizes counsel to the Buyer to render such
      opinion.  The Transfer Agent shall accept and be entitled to
      rely on such opinion for the purposes of issuing the Conversion Shares,
      the Warrant Shares or the Interest
Shares.

            


    

     

    
      	
               
      

            	
              d.

            	
              Upon
      the Company’s or the Escrow Agent’s receipt of a properly completed
      Conversion Notice or Exercise Notice (along with evidence that the
      Aggregate Exercise Price (as defined in the Warrant) has been delivered to
      the Company), the Company or the Escrow Agent, as the case may be, shall,
      within one Trading Day thereafter, send to the Transfer Agent the
      Conversion Notice or Exercise Notice, as the case may be, which shall
      constitute an irrevocable instruction to the Transfer Agent to process
      such Conversion Notice or Exercise Notice in accordance with the terms of
      these instructions.  For purposes hereof “Trading
      Day” shall
      mean any day on which the Nasdaq Market is open for customary
      trading.

            


    

     

    
      	
               
      

            	
              2.

            	
              All
    Shares.

            


    

     

    
      	
               
      

            	
              a.

            	
              The
      Company hereby irrevocably appoints the Escrow Agent as a duly authorized
      agent of the Company for the purposes of authorizing the Transfer Agent to
      process issuances and transfers specifically contemplated
      herein.

            


    

     

    
      	
               
      

            	
              b.

            	
              The
      Transfer Agent shall rely exclusively on the Conversion Notice or the
      Exercise Notice, and shall have no liability for relying on such
      instructions.  Any Conversion Notice or Exercise Notice
      delivered hereunder shall constitute an irrevocable instruction to the
      Transfer Agent to process such notice or notices in accordance with the
      terms thereof.  Such notice or notices may be transmitted to the
      Transfer Agent by facsimile or any commercially reasonable
      method.

            


    

     

    
      	
               
      

            	
              c.

            	
              The
      Company hereby confirms to the Transfer Agent and the Buyer that no
      instructions other than as contemplated herein will be given to Transfer
      Agent by the Company with respect to the matters referenced
      herein.  The Company hereby authorizes the Transfer Agent, and
      the Transfer Agent shall be obligated, to disregard any contrary
      instructions received by or on behalf of the
  Company.

            


    

     

    
      	
               
      

            	
              3.

            	
              Certain Notice Regarding the
      Escrow Agent. The Company and the Transfer Agent hereby acknowledge
      that the Escrow Agent is general counsel to the Buyer, a partner of the
      general partner of the Buyer and counsel to the Buyer in connection with
      the transactions contemplated and referred herein.  The Company
      and the Transfer Agent agree that in the event of any dispute arising in
      connection with this Agreement or otherwise in connection with any
      transaction or agreement contemplated and referred herein, the Escrow
      Agent shall be permitted to continue to represent the Buyer and neither
      the Company nor the Transfer Agent will seek to disqualify such
      counsel.

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              4.

            	
              Company
      Acknowledgments.

            


    

     

    
      	
               
      

            	
              a.

            	
              The
      Company hereby agrees that it shall not replace the Transfer Agent as the
      Company’s transfer agent without the prior written consent of the
      Buyer.

            


    

     

    
      	
               
      

            	
              b.

            	
              The
      Company agrees that in the event that the Transfer Agent resigns as the
      Company’s transfer agent the Company shall engage a suitable replacement
      transfer agent that will agree to serve as transfer agent and to be bound
      by the terms and conditions of these Irrevocable Transfer Agent
      Instructions within 5 business days from the effectiveness of such
      resignation.

            


    

     

    
      	
               
      

            	
              c.

            	
              The
      Company acknowledges that the Buyer is relying on the representations and
      covenants made by the Company hereunder and are a material inducement to
      the Buyer purchasing the Debenture pursuant to the Securities Purchase
      Agreement.  The Company further acknowledges that without such
      representations and covenants of the Company made hereunder, the Buyer
      would not purchase the Debenture.

            


    

     

    
      	
               
      

            	
              d.

            	
              The
      Company specifically acknowledges and agrees that in the event of a breach
      or threatened breach by a party hereto of any provision hereof, the Buyer
      will be irreparably damaged and that damages at law would be an inadequate
      remedy if these Irrevocable Transfer Agent Instructions were not
      specifically enforced.  Therefore, in the event of a breach or
      threatened breach by the Company, including, without limitation, the
      attempted termination of the agency relationship created by this
      instrument, the Buyer shall be entitled, in addition to all other rights
      or remedies, to an injunction restraining such breach, without being
      required to show any actual damage or to post any bond or other security,
      and/or to a decree for specific performance of the provisions of these
      Irrevocable Transfer Agent
Instructions.

            


    

     

    
      	
               
      

            	
              5.

            	
              Transfer Agent Binding
      Disclaimer:  In consideration for the Transfer Agent
      agreeing and attesting to all terms in the above referenced Irrevocable
      Transfer Agent Instructions, in particular any kind of lawsuit and or
      action that may arise from the Buyer’s instructing the Transfer Agent to
      issue shares based on the legality of the Securities Purchase Agreement
      whereas the Company is denying the request in full or partially for
      whatever reason, the Company, Buyer and any other third party involved
      agree for ourselves, our successors, legal representatives and assigns, at
      all times to defend, indemnify and save the Transfer Agent, their
      successors and assigns, free and harmless from and against any and all
      claims, from actions, suits, whether groundless or otherwise, and from and
      against any and all liabilities, taxes, losses, damages, costs, charges,
      counsel fees, and other expenses of every nature and character that arises
      from this action.

            


    

     

    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    IN WITNESS WHEREOF, the
parties have caused this letter agreement regarding Irrevocable Transfer Agent
Instructions to be duly executed and delivered as of the date first written
above.

     

    
      
        
          
            
              
                	 
      	
                        COMPANY:

                      
	 
      	 
      
	 
      	
                        Neomedia
      Technologies, Inc.

                      
	 
      	 
      
	 
      	
                        By:

                      	/s/
      Michael W. Zima
	 
      	
                        Name:     
      Michael W. Zima

                      
	 
      	
                        Title:        Chief
      Financial Officer

                      
	 
      	 
      
	 
      	
                        BUYER:

                      
	 
      	
                        YA
      Global Investments, L.P.

                      
	 
      	 
      
	 
      	
                        By:      Yorkville
      Advisors, LLC

                      
	 
      	
                        Its:       Investment
      Manager

                      
	 
      	 
      
	 
      	
                        By:

                      	/s/
      Gerald Eicke
	 
      	
                        Name:    
      Gerald Eicke

                      
	 
      	
                        Title:      
      Managing Member

                      
	 
      	 
      
	 
      	
                        ESCROW
      AGENT

                      
	 
      	 
      
	 
      	
                        By:

                      	/s/
      David Gonzalez
	 
      	
                        David
      Gonzalez,
Esq.

                      


              

            

          

        

      

    

     

    WorldWide
Stock Transfer, LLC

    


    
      
        
          
            
              
                
                  
                    	
                            By:

                          	 
      	 
	
                            Name:

                          	 
      	 
	
                            Title:

                          	 
      	 


                  

                

              

            

          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    EXHIBIT
I

     

    TO IRREVOCABLE TRANSFER
AGENT INSTRUCTIONS

     

    FORM
OF NOTICE OF EFFECTIVENESS

    OF REGISTRATION
STATEMENT

     

    _________,
20__

    


    ________

    


    Attention:

    


    RE:           NEOMEDIA
TECHNOLOGIES, INC.

    


    Ladies
and Gentlemen:

    


    We are
counsel to Neomedia Technologies, Inc., (the “Company”), and have
represented the Company in connection with its filing of a registration
statement covering the resale of certain shares (the “Conversion Shares”)
Company’s common stock, par value $.001 per share (the “Common Stock”) issued
upon the conversion of the secured convertible debenture purchased by YA Global
Investments, LP (the “Buyer”) pursuant to
that certain Securities Purchase Agreement, dated as of May _, 2010 (the “Securities Purchase
Agreement”), entered into by and among the Company and the
Buyer.  On _______, 20__, the Company filed a Registration Statement
(File No. ___-_________) (the “Registration
Statement”) with the Securities and Exchange Commission (the “SEC”) relating to the
sale of the Conversion Shares.

     

    In
connection with the foregoing, we advise the Transfer Agent that a member of the
SEC’s staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at ____ P.M.
on __________, 20__ and we have no knowledge that any stop order suspending its
effectiveness has been issued or that any proceedings for that purpose are
pending before, or threatened by, the SEC and the Conversion Shares are
available for sale under the 1933 Act pursuant to the Registration
Statement.

     

    The
statement made herein that “we have no knowledge” is based solely on information
actually known to those attorneys currently practicing with this firm and
engaged in the representation of the Company in connection with the transactions
contemplated by the Securities Purchase Agreement.

     

    Very
truly yours,


    
      
         


      

      
        EXHIBIT
I

        
          

        

      

      
         


      

    


    EXHIBIT
II

     

    TO IRREVOCABLE TRANSFER
AGENT INSTRUCTIONS

     

    FORM OF
OPINION

    


    ________________ 20__

    


    VIA FACSIMILE AND REGULAR
MAIL

    


    WorldWide
Stock Transfer, LLC

    433
Hackensack Avenue, Level L

    Hackensack,
New Jersey 07601

    


    RE:           NEOMEDIA
TECHNOLOGIES, INC.

    


    Ladies
and Gentlemen:

     

    We have
acted as counsel to Neomedia Technologies, Inc., a Delaware corporation (the
“Company”), in
connection with the registration under the Securities Act of 1933, as amended
(the “Act”), of an offering of up to ____________ shares of the Company’s common
stock, par value $0.001 per share (the “Common Stock”), issued or to be issued
to the selling stockholders (the “Selling Stockholders”) listed in the selling
stockholders table at page __ of the final prospectus, a copy of which is
attached hereto as Exhibit A.  We understand that the certificates
representing the Common Stock currently contain a legend (the “Securities Act
Legend”) stating that the Common Stock represented by such certificates may not
be sold or transferred without registration under the Act.

     

    The sale
of the Common Stock by the Selling Stockholders has been registered under the
Act pursuant to a Registration Statement on Form S-1 (SEC File No. 333-______),
filed with the Securities and Exchange Commission (the “Commission”) on ________
__, 200_ (the “Registration Statement”).  The Registration Statement
was declared effective under the Act by the Commission on ________ __,
200_.  Therefore, the Common Stock identified in the Registration
Statement, including those shares issued upon exercise of the Convertible
Debentures and Warrants referenced in Exhibit A, may, upon receipt of
confirmation from the Selling Stockholder that the Common Stock has been or will
be sold only pursuant to the Registration Statement and that the Selling
Stockholder has complied, or will comply, with all applicable prospectus
delivery requirements, be issued or reissued, as applicable, without bearing the
Securities Act Legend.

     

    Very
truly yours,


    
      
         


      

      
        EXHIBIT
II

        
          

        

      

      
         


      

    

     

    EXHIBIT
A

     

    Prospectus


    
      
         


      

      
        EXHIBIT A