EXHIBIT 10.65
NEOMEDIA TECHNOLOGIES, INC.
NEOMEDIA TELECOM SERVICES INC.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
June 6, 2005
Xx. Xxx Xxxxx
President and Chief Executive Officer
BSD Software, Inc.
0000 XxxXxxx Xxxxx, X.X., Xxxxx 000X
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Re: Increase to Number of Allowable BSD Shares Outstanding
Dear Xx. Xxxxx:
This letter agreement amends particular terms of that of that certain
Agreement and Plan of Merger (the "AGREEMENT"), dated as of December 21, 2004,
by and among NeoMedia Technologies, Inc., a Delaware corporation ("BUYER"),
NeoMedia Telecom Services, Inc., a Nevada corporation ("MERGER SUB"), and BSD
Software, Inc., a Florida corporation (the "COMPANY"). Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Agreement. The Agreement is hereby amended in the following respects:
Section 7.3.(g) is hereby amended to read as follows:
"Issued Company Common Stock. The Company shall not have in
excess of 38,000,000 shares of Company Common Stock issued and
outstanding as of the Closing Date."
As a result of the foregoing change, Buyer shall have the absolute
right to terminate the Agreement, and the Merger would thereby be abandoned, if
the Company has in excess of 38,000,000 shares outstanding on the Closing Date,
as defined in the Agreement.
This letter agreement may be executed in any number of counterparts,
each of which shall be deemed an original, and both of which shall constitute
one and the same instrument. This letter agreement shall be accepted, effective
and binding, for all purposes, when the parties shall have signed and
transmitted to each other, by telecopier or otherwise, copies of this letter
agreement. In the event of any litigation arising hereunder, the prevailing
party or parties shall be entitled to recover its reasonable attorneys' fees and
court costs from the other party or parties, including the costs of bringing
such litigation and collecting upon any judgments. This letter agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, legal representatives, trustees, successors and
assigns.
If the foregoing correctly sets forth the terms of our agreement, please so
signify by signing this letter agreement on the line provided below for such
purpose and transmitting to each of us a signed copy of this letter agreement,
whereupon this letter agreement will constitute a binding agreement among us.
Very truly yours,
NEOMEDIA TECHNOLOGIES, INC.
By:
-----------------------------------------
/s/ Xxxxxxx X. Xxxxxx
President, CEO & Director
NEOMEDIA TELECOM SERVICES, INC.
By:
-----------------------------------------
/s/ Xxxxx X. Dodge
Secretary & Treasurer
ACKNOWLEDGED, AGREED TO AND ACCEPTED THIS 6TH DAY OF JUNE, 2005:
BSD SOFTWARE, INC.
By:
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/s/ Xxx Xxxxx, President & CEO
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use of our Report of Independent Registered Public Accounting
Firm dated February 11, 2005, covering the consolidated financial statements of
Neomedia Technologies, Inc. as of December 31, 2004 and for the years ended
December 31, 2004 and 2003 in the Form S-4 Amendment No. 1 registration
statement to be filed with the Commission on about June 6, 2005.
We also consent to the reference to us as experts in matters of accounting and
auditing in this registration statement.
/s/ STONEFIELD XXXXXXXXX, INC.
CERTIFIED PUBLIC ACCOUNTANTS
Irvine, California
June 3, 2005
