MERGER AGREEMENT 


 


AGREEMENT AND PLAN OF MERGER


 


BETWEEN QODE SERVICES CORPORATION


 


(a Delaware corporation),


 


AND


 


NEOMEDIA TECHNOLOGIES, INC. 


 


(a Delaware corporation) 


 


This AGREEMENT AND
PLAN OF MERGER (this "Agreement") is made and entered into as of February 21, 2014, between Qode Services Corporation,
a Delaware corporation ("Subsidiary"), and Neomedia Technologies, Inc., a Delaware corporation ("Parent").


 


RECITALS


 


WHEREAS, Subsidiary
is a corporation duly organized and existing under the laws of the State of Delaware;


 


WHEREAS, Parent
is a corporation duly organized and existing under the laws of the State of Delaware; and


 


WHEREAS, the
Board of Directors of Subsidiary and the Board of Directors of Parent deem it advisable to merge Subsidiary with and into Parent
so that Parent is the surviving corporation on the terms provided herein (the "Merger");


 


NOW, THEREFORE,
in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE I

MERGER


 


Section 1.1.          The
Merger.


 


After satisfaction
or, to the extent permitted hereunder, waiver of all conditions to the Merger, and subject to the applicable provisions of the
General Corporation Law of the State of Delaware (the "DGCL"), Subsidiary will merge with and into Parent and Parent
shall file a


 




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Certificate of Merger with the Secretary
of State of the State of Delaware (the "Secretary of State") in accordance with the provisions of the DGCL and shall
make all other filings or recordings required by Delaware law in connection with the Merger. The Merger shall become effective
upon the filing of such Certificate of Merger with the Secretary of State or at such later time as may be provided for in such
Certificate of Merger (the "Effective Time"). Upon the Effective Time, the separate corporate existence of Subsidiary
shall cease and Parent shall be the surviving corporation (the "Surviving Corporation").


  


Section 1.2.          Conditions
to the Merger.


 


The respective obligation
of each party to effect the Merger is subject to the satisfaction or waiver (except as provided in this Agreement) of the following
conditions:


 


(a)          This
Agreement shall have been adopted by the sole stockholder of Subsidiary, in accordance with the requirements of the DGCL and the
Certificate of Incorporation and Bylaws of Subsidiary; and


 


(b)          This
Agreement shall have been adopted by holders of at least a majority of the outstanding voting power of Parent in accordance with
the requirements of the DGCL and the Restated Certificate of Incorporation and Bylaws of Parent.


 


Section 1.3.          Transfer,
Conveyance and Assumption.


 


At the Effective Time,
Parent shall continue in existence as the Surviving Corporation and, without further transfer, succeed to and possess all rights,
privileges, powers and franchises of Subsidiary, and all of the assets and property of whatever kind and character of the Subsidiary
shall vest in Parent, as the Surviving Corporation, without further deed; thereafter, Parent, as the Surviving Corporation, shall
be liable for all of the liabilities and obligations of Subsidiary, and any claim or judgment against Subsidiary may be enforced
against Parent, as the Surviving Corporation, in accordance with Section 259 of the DGCL.


 


Section 1.4.          Certificate
of Incorporation; Bylaws.


 


(a)          From
and after the Effective Time, the Restated Certificate of Incorporation of Parent shall be the Restated Certificate of Incorporation
of the Surviving Corporation provide that Article IV thereof shall be amended in its entirety as follows:


 


“The
Company is authorized to issue two (2) classes of capital stock to be designated, respectively, “Common Stock” and
“Preferred Stock.” The total number of shares of capital stock that the Company is authorized to issue is 7,525,000,000
shares. 7,500,000,000 shares shall be Common Stock, no par value per share, and 25,000,000 shares shall be Preferred Stock, par
value $0.01 per share.


 




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The 25,000,000
shares of Preferred Stock may be issued in one or more series at such time or times and for such consideration as shall be authorized
from time to time by the Board of Directors. The Board of Directors will be authorized to fix the designation of each series of
Preferred Stock and the relative rights, preferences, limitations, qualifications, powers or restrictions thereof, including the
number of shares comprising each series, the dividend rates, redemption rights, rights upon voluntary or involuntary liquidation,
provisions with respect to a retirement or sinking fund, conversions rights, voting rights, if any, preemptive rights, other preferences,
qualifications, limitations, restrictions and the special or relative rights of each series.


 


The number
of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding)
by the affirmative vote of the holders of the majority of the outstanding voting power of all shares of capital stock of the Company,
without a separate class vote of the holders of the outstanding shares of Common Stock irrespective of Section 242(b)(2) of the
General Corporation Law of the State of Delaware.


   


To the fullest
extent permitted by law, the holders of Common Stock shall not be entitled to vote on any amendment to the terms of any outstanding
series of Preferred Stock which solely affects the rights, powers, preferences, qualifications, powers or restrictions of such
series of Preferred Stock.


 


Upon the
filing and effectiveness pursuant to the General Corporation Law of the State of Delaware of this certificate (the “Effective
Time”), each fifteen (15) shares of Common Stock issued and outstanding or held by the Company as treasury stock shall,
automatically and without any action on the part of the holders thereof, be combined and converted into one (1) share of Common
Stock of the Company. No fractional shares shall be issued and, in lieu of a fractional share of Common Stock to which any stockholder
is entitled, such stockholder shall receive a cash payment in an amount equal to the product obtained by multiplying (a) the fraction
to which the stockholder would otherwise be entitled by (b) the per share closing sales price of the Company’s Common Stock
on the day immediately prior to the Effective Time, as reported on the OTC Markets Bulletin Board.”


 


(b)          From
and after the Effective Time, the Bylaws of Parent shall be the Bylaws of the Surviving Corporation.


 


(c)          Directors
and Officers of the Surviving Corporation. From and after the Effective Time, the directors and officers of Parent serving
as directors or officers of Parent immediately prior to the Effective Time shall be the directors and officers of the Surviving
Corporation.


 




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ARTICLE II

EFFECT ON STOCK


 


Section 2.1.          Effect
on Stock.


 


(a)          Upon
the Effective Time, by virtue of the Merger and without any action on the part of the holder of any outstanding share of common
stock, par value $0.01 per share, of Subsidiary (the "Subsidiary Common Stock"), each share of Subsidiary Common Stock
issued and outstanding immediately prior to the Effective Time (along with all shares of Subsidiary Capital Stock that are held
by the Subsidiary in treasury or otherwise) shall be canceled and no consideration shall be issued in respect thereof.


 


(b)          Upon
the Effective Time, by virtue of the Merger and without any action on the part of the holder of any outstanding share of common
stock, par value $0.001 per share, of Parent (the "Parent Common Stock"), each share of Parent Common Stock issued and
outstanding immediately prior to the Effective Time shall continue to remain outstanding as one share of Common Stock of the Surviving
Corporation and remain unchanged, except that (i) the par value shall change from $0.001 per share to no par value per share, and
(ii) each fifteen (15) shares of Common Stock issued and outstanding shall be combined and converted into one (1) share of Common
Stock (the “Reverse Split”).


 


(c)          Upon
the Effective Time, by virtue of the Merger and without any action on the part of the holder of any outstanding share of Series
C Convertible Preferred Stock, par value $0.01 per share, of Parent (the "Parent Series C Preferred Stock"), each share
of Parent Series C Preferred Stock issued and outstanding immediately prior to the Effective Time shall remain unchanged and continue
to remain outstanding as one share of Parent Series C Preferred Stock of the Surviving Corporation. 


 


(d)          Upon
the Effective Time, by virtue of the Merger and without any action on the part of the holder of any outstanding share of Series
D Convertible Preferred Stock, par value $0.01 per share, of Parent (the "Parent Series D Preferred Stock"), each share
of Parent Series D Preferred Stock issued and outstanding immediately prior to the Effective Time shall remain unchanged and continue
to remain outstanding as one share of Parent Series D Preferred Stock of the Surviving Corporation. 


 


Section 2.2.          Shares
of Dissenting Stockholders.


 


Notwithstanding anything
in this Agreement to the contrary, any issued and outstanding shares of capital stock of Parent held by a person (a "Dissenting
Stockholder") who shall not have voted or consented in writing to adopt this Agreement and who properly demands appraisal
for such shares in accordance with Section 262 of the DGCL ( "Dissenting Shares") shall be converted into the right to
receive such consideration as may be determined to be due to such Dissenting Stockholder pursuant to the DGCL, unless such holder
fails to perfect or withdraws or otherwise loses his right to appraisal. If, after the Effective Time, such Dissenting Stockholder
fails to perfect or withdraws or loses his right to appraisal, such Dissenting Stockholder's shares of capital stock of Parent
shall no longer be considered Dissenting Shares for the purposes of this Agreement.


 




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Section 2.3.          No
Fractional Shares.


 


As a result of and
in connection with the Reverse Split, no fractional shares shall be issued and, in lieu of a fractional share of Common Stock to
which any stockholder is entitled, such stockholder shall receive a cash payment in an amount equal to the product obtained by
multiplying (a) the fraction to which the stockholder would otherwise be entitled by (b) the per share closing sales price of the
Company’s Common Stock on the day immediately prior to the Effective Time, as reported on the OTC Markets Bulletin Board.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES


 


Section 3.1.          Representations
and Warranties of Subsidiary.


 


Subsidiary hereby represents
and warrants that it:


 


(a)          is
a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all the requisite
power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted;


 




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(b)          is
duly qualified to do business as a foreign person, and is in good standing, in each jurisdiction where the character of its properties
or the nature of its activities make such qualification necessary;


 


(c)          is
not in violation of any provisions of its Certificate of Incorporation or Bylaws; and


 


(d)          has
full corporate power and authority to execute and deliver this Agreement and, assuming the adoption of this Agreement by the sole
stockholder of Subsidiary in accordance with the DGCL and the Certificate of Incorporation and Bylaws of Subsidiary, consummate
the Merger and the other transactions contemplated by this Agreement.


 


Section 3.2.          Representations
and Warranties of Parent.


 


Parent hereby represents
and warrants that it:


 


(a)          is
a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all the requisite
power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted;


 


(b)          is
duly qualified to do business as a foreign person, and is in good standing, in each jurisdiction where the character of its properties
or the nature of its activities make such qualification necessary;


 


(c)          is
not in violation of any provisions of its Restated Certificate of Incorporation or Bylaws; and


 


(d)          has
full corporate power and authority to execute and deliver this Agreement and, assuming the adoption of this Agreement by the stockholders
of Parent in accordance with the DGCL and the Restated Certificate of Incorporation and Bylaws of Parent, consummate the Merger
and the other transactions contemplated by this Agreement.


 


ARTICLE IV

TERMINATION


 


Section 4.1.          Termination.


 


At any time prior to
the Effective Time, this Agreement may be terminated and the Merger abandoned for any reason whatsoever by the Board of Directors
of Subsidiary or the Board of Directors of Parent, notwithstanding the adoption of this Agreement by the stockholders of Subsidiary
or Parent.


 


ARTICLE V

FURTHER ASSURANCES


 


Section 5.1.          Further
Assurances as to Subsidiary.


 


If, at any time after
the Effective Time, the Surviving Corporation shall consider or be advised that any further assignment, conveyance or assurance
in law or any other acts are necessary or desirable to (i) vest, perfect or confirm in the Surviving Corporation its right, title
or interest in, to or under any of the rights, properties or assets of Subsidiary acquired or to be acquired by the Surviving Corporation
as a result of, or in connection with, the Merger, or (ii) otherwise carry out the purposes of this Agreement, Subsidiary and its
proper officers shall be deemed to have granted to the Surviving Corporation an irrevocable power of attorney to execute and deliver
all such proper deeds, assignments and assurances in law and to do all acts necessary or proper to vest, perfect or confirm title
to and possession of such rights, properties or assets in the Surviving Corporation and otherwise carry out the purposes of this
Agreement; and the officers and directors of the Surviving Corporation are fully authorized in the name of Subsidiary or otherwise
to take any and all such action.


 




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ARTICLE VI

MISCELLANEOUS


 


Section 6.1.          Amendment.


 


At any time prior to
the Effective Time, this Agreement may be amended, modified or supplemented by the Board of Directors of Subsidiary and the Board
of Directors of Parent, whether before or after the adoption of this Agreement by the stockholders of Subsidiary and Parent; provided,
however, that after any such adoption, there shall not be made any amendment that by law requires the further approval by such
stockholders of Subsidiary or Parent without such further approval. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of Subsidiary and Parent.


 


Section 6.2.          No
Waivers.


 


No failure or delay
by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.


 


Section 6.3.          Assignment;
Third Party Beneficiaries.


 


Neither this Agreement,
nor any right, interest or obligation hereunder shall be assigned by any of the parties hereto without the prior written consent
of the other parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. This Agreement is not intended to confer any rights or benefits upon any person other than the parties
hereto.


 


Section 6.4.          Governing
Law.


 


This Agreement shall
in all respects be interpreted by, and construed, interpreted and enforced in accordance with and pursuant to the laws of the State
of Delaware.


 


Section 6.5.          Counterparts.


 


This Agreement may
be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.


 


Section 6.6.          Entire
Agreement.


 


This Agreement and
the documents referred to herein are intended by the parties as a final expression of their agreement with respect to the subject
matter hereof, and are intended as a complete and exclusive statement of the terms and conditions of that agreement, and there
are not other agreements or understandings, written or oral, among the parties, relating to the subject matter hereof. This Agreement
supersedes all prior agreements and understandings, written or oral, among the parties with respect to the subject matter hereof.


 


[SIGNATURE PAGE FOLLOWS] 


 




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IN WITNESS WHEREOF,
the undersigned, intending to be legally bound hereby, have duly executed this Agreement as of the date first stated above. 


 


	 	QODE SERVICES CORPORATION
	 	 	 
	 	By: 	/s/ Laura A. Marriott
	 	Name:  Laura A. Marriott
	 	Title:  President and Chief Executive Officer
	 	 
	 	NEOMEDIA TECHNOLOGIES, INC.
	 	 	 
	 	By:	/s/ Laura A. Marriott
	 	Name:  Laura A. Marriott
	 	Title:  President and Chief Executive Officer


 




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