-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Vawn2tBmxXKLbiWUgevNzuQb5+8CTqnb5rPu6s7wqu1jUJFO+TEcQSqpJDvA/cEL yWmnPDTSj2vnrof1pjGbHA== 0000898432-02-000842.txt : 20021202 0000898432-02-000842.hdr.sgml : 20021202 20021202100948 ACCESSION NUMBER: 0000898432-02-000842 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20021202 EFFECTIVENESS DATE: 20021202 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEOMEDIA TECHNOLOGIES INC CENTRAL INDEX KEY: 0001022701 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 363680347 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-101588 FILM NUMBER: 02845272 BUSINESS ADDRESS: STREET 1: 2201 SECOND ST STE 600 STREET 2: STE 600 CITY: FORT MYERS STATE: FL ZIP: 33901 BUSINESS PHONE: 6303554404 MAIL ADDRESS: STREET 1: 2201 SECOND STREET STREET 2: SUITE 600 CITY: FORT MYERS STATE: FL ZIP: 33901 FORMER COMPANY: FORMER CONFORMED NAME: DEVSYS INC DATE OF NAME CHANGE: 19960911 S-8 1 neomedia_form-s8.txt As filed with the Securities and Exchange Commission on November 27, 2002 File No. 33- _________ SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM S-8 Registration Statement Under the Securities Act of 1933 NEOMEDIA TECHNOLOGIES, INC. (Name of Registrant in its charter) DELAWARE 36-3680347 (State or jurisdiction of incorporation (I.R.S. Employer Identification No.) or organization) 2201 SECOND STREET, SUITE 600 FORT MYERS, FLORIDA 33901 239-337-3434 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) JERALD EICKE CONSULTING AGREEMENT (Full Title of the Plan) CHARLES T. JENSEN 2201 SECOND STREET, SUITE 402 FORT MYERS, FLORIDA 33901 239-337-3434 239-337-3668 - FAX (Name, address, including zip code, and telephone number, including area code, of agent for service) WITH COPIES TO: Clayton Parker, Esq. David A. Dodge Kirkpatrick & Lockhart LLP NeoMedia Technologies, Inc. 201 South Biscayne Boulevard 2201 Second Street, Suite 600 Miami Center - Suite 2000 Fort Myers, Florida 33901 Miami, FL 33131 (239) 337-3434 (305) 539-3300 (239) 337-3668 Fax (305) 358-7095 Fax
CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- Common Stock (1) 4,000,000 $0.05 $200,000.00 $18.40 - ----------------------------------------------------------------------------------------------------------------------- (1) Represents shares of common stock issued directly to Jerald Eicke, an unrelated consultant, for consulting services rendered. The registration fee being paid hereunder has been estimated/determined pursuant to Rule 457(h), and is based on the closing price of the Company's Common Stock on the OTCBB market on November 25, 2002.
PART I The documents containing the information specified in Part I of Form S-8 (plan information and registrant information) will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Act"). Such documents need not be filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents, which include the statement of availability required by Item 2 of Form S-8, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Act. PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed with the Securities and Exchange Commission are hereby incorporated by reference: (a) The Annual Report of the Company on Form 10-K for the fiscal year ended December 31, 2001. (b) Form 10-Q for the three- and nine-month periods ending September 30, 2002. (c) Form 10-Q for the three- and six-month periods ending June 30, 2002. (d) Form 10-Q for the three-month period ending March 31, 2002. (e) Form 8-K dated June 26, 2002, disclosing that the Company's Board of Directors had elected Charles T. Jensen as President and Chief Operating Officer and David A. Dodge as Vice President and Chief Financial Officer. (f) Form 8-K dated May 17, 2002, disclosing that the Company's common stock was delisted from the Nasdaq SmallCap Market effective May 17, 2002, and that the Company's common stock would begin trading on the Over-the-Counter Bulletin Board the same day. (g) Form 8-K dated April 15, 2002, disclosing that the Company had instituted an option repricing program for certain of its outstanding stock options. (h) Form 8-K dated April 2, 2002, disclosing that the Company had instituted a warrant repricing program for all of its outstanding stock warrants. (i) The description of the Company's common stock, par value $.01 per share, which is contained in the Company's Registration Statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended, on November 18, 1996, including any amendment or report filed with the Securities and Exchange Commission for the purpose of updating such description of common stock. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS As permitted by Delaware General Corporation Law ("DGCL"), the Company has included in its Certificate of Incorporation a provision to eliminate the personal liability of its directors for monetary damages for breach or alleged breach of their fiduciary duties as directors, except for liability (i) for any breach of director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involved intentional misconduct or a knowing violation of law, (iii) in respect of certain unlawful dividend payments or stock redemptions or repurchases, as provided in Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. The effect of this provision in the Company's Certificate of Incorporation is to eliminate the rights of the Company and its stockholders (through stockholders' derivative suits on behalf of the Company) to recover monetary damages against a director for breach of the fiduciary duty of care as a director except in the situations described in (i) through (iv) above. This provision does not limit nor eliminate the rights of the Company or any stockholder to seek non-monetary relief such as an injunction or rescission in the event of a breach of a director's duty of care. These provisions will not alter the liability of directors under federal securities laws. The Certificate of Incorporation and the by-laws of the Company provide that the Company is required and permitted to indemnify its officers and directors, employees and agents under certain circumstances. In addition, if permitted by law, the Company is required to advance expenses to its officers and directors as incurred in connection with proceedings against them in their capacity as a director or officers for which they may be indemnified upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to indemnification. At present, the Company is not aware of any pending or threatened litigation or proceeding involving a director, officer, employee or agent of the Company in which indemnification would be required or permitted. The Company has obtained directors and officers liability insurance. The Company believes that its charter provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors and officers of the Company pursuant to the foregoing provisions or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable ITEM 8. EXHIBITS EXHIBIT 4 NeoMedia Technologies, Inc. 2002 Stock Option Plan (incorporated by reference to Appendix A in NeoMedia Technologies 14A Definitive Proxy Statement as filed with the SEC on May 7, 2002) 5.1 Opinion re: legality 10.1 Consulting Agreement between NeoMedia Technologies, Inc. and Jerald Eicke (filed herewith) 23.1 Consent of Stonefield Josephson, Inc., current independent auditors of NeoMedia Technologies, Inc. 23.2 Consent of Kirkpatrick & Lockhart LLP (included in Exhibit 5.1 opinion letter) 24 Power of Attorney (included on signature page) In accordance with Securities Act Rule 437a, the consent of Arthur Andersen LLP has not been included as an exhibit herewith. The Company has been unable to obtain a consent of Arthur Andersen LLP due to the departure of their engagement team leaders from such firm. Any recovery by investors posed by the lack of consent is limited by Securities Act Rule 437a. 2 ITEM 9. UNDERTAKINGS (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person connected with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Myers, State of Florida, on November 25, 2002. NEOMEDIA TECHNOLOGIES, INC. By: /S/ CHARLES T. JENSEN --------------------- Charles T. Jensen, President, Chief Operating Office, and Acting Chief Executive Officer 4 POWER OF ATTORNEY The undersigned officers and directors of NeoMedia Technologies, Inc. hereby constitute and appoint Charles W. Fritz with power to act one without the other, our true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for us and in our stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this Registration Statement and all documents relating thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing necessary or advisable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitutes, may lawfully do or cause to be done by virtue hereof. SIGNATURES TITLE DATE /S/ CHARLES W. FRITZ Chairman of the Board and Director November 25, 2002 - ------------------------------------ Charles W. Fritz /S/ WILLIAM E. FRITZ Secretary and Director November 25, 2002 - ------------------------------------ William E. Fritz /S/ CHARLES T. JENSEN President, Chief Operating Officer, - ------------------------------------ Acting Chief Executive Officer, and Charles T. Jensen Director November 25, 2002 /S/ DAVID A. DODGE Vice President, Chief Financial - ------------------------------------ Officer, and Controller David A. Dodge November 25, 2002 /S/ A. HAYES BARCLAY Director November 25, 2002 - ------------------------------------ A. Hayes Barclay /S/ JAMES J. KEIL Director November 25, 2002 - ------------------------------------ James J. Keil
EX-5 3 neomedia_exh5-1.txt EXHIBIT 5.1 EXHIBIT 5.1 November 27, 2002 NeoMedia Technologies, Inc. 2201 Second Street, Suite 600 Fort Meyers, Florida 33901 RE: NEOMEDIA TECHNOLOGIES, INC. (THE "CORPORATION") REGISTRATION STATEMENT ON FORM S-8 (THE "REGISTRATION STATEMENT") Gentlemen: We have acted as special counsel to the Corporation in connection with the preparation of the Registration Statement filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "1933 Act"), relating to the proposed public offering of up to 4,000,000 shares of the Corporation's common stock, par value $0.01 per share (the "COMMON STOCK"). We are furnishing this opinion to you in accordance with Item 601(b)(5) of Regulation S-K promulgated under the 1933 Act for filing as Exhibit 5.1 to the Registration Statement. We are familiar with the Registration Statement, and we have examined the Corporation's Certificate of Incorporation, as amended to date, the Corporation's Bylaws, as amended to date, and minutes and resolutions of the Corporation's Board of Directors and shareholders. We have also examined such other documents, certificates, instruments and corporate records, and such statutes, decisions and questions of law as we have deemed necessary or appropriate for the purpose of this opinion. Based upon the foregoing, we are of the opinion that the shares of Common Stock to be sold by the Selling Stockholders (as defined in the Registration Statement) to the public, when issued and sold in the manner described in the Registration Statement (as amended), will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to the use of our name in the Prospectus constituting a part thereof in connection with the matters referred to under the caption "Legal Matters." Very truly yours, /S/ KIRKPATRICK & LOCKHART LLP KIRKPATRICK & LOCKHART LLP EX-10 4 neomedia_exh10-1.txt EXHIBIT 10.1 EXHIBIT 10.1 CONSULTING AGREEMENT This agreement is entered into by Gerald Eicke, hereinafter referred to "Consultant", and NeoMedia Technologies, hereinafter referred to as "NeoMedia", and sets forth the terms and conditions for services to be rendered by Consultant on behalf of NeoMedia. SERVICES OF THE CONSULTANT Gerald Eicke will serve as your consultant to advise and assist you on the formulation and implementation of management directives. These services include, but are not be limited to, the following: o Assistance in connection with potential acquisition transactions. o Advice concerning the formulation and implementation of various management programs intended to achieve targeted corporate objectives. TIMING, FEES AND EXPENSES 1. Consultant will commence its work with NeoMedia immediately. For the consulting services provided during the term of the engagement, Consultant charges a one time up front fee of 2 million options at an exercise price of $.01 per option (the "Option Fee"), and 4,000,000 shares of registered stock, (the "Stock Fee") at a 0 cost basis collectively representing the "Consulting Fee". The consulting services will be for a period of 1 year. If NeoMedia desires to terminate the services of the Consultant prior to the expiration of this agreement, the Consulatnt will be entitled to retain the entire consulting fee and no proration of this fee will be made. 2. NeoMedia will issue to Gerald Eicke within two business days of signing the consulting agreement the 2 million options and within 10 business days of signing the consulting agreement issue to Gerald Eicke 4,000,000 shares of registered stock. 3. Travel expenses. All of Consultant's travel, lodging, meals and airfare incurred on NeoMedia's behalf, over $250, shall be pre-approved. Airfare shall be pre-paid directly by NeoMedia (rather than paid by, and subsequently reimbursed to Consultant). o All remittances will be made to Gerald Eicke. ADDITIONAL TERMS This Agreement will commence with your signing this Agreement, and will continue for a period of 365 days. 1. Consultant's relationship with NeoMedia shall be that of an independent contractor and not that of an employee. Consultant will not be eligible for any employee benefits, nor will NeoMedia make deductions from the consulting fees for taxes, insurance, bonds or any other subscription of any kind, which shall be Consultant's sole responsibility. Consultant will use its best efforts in performing the services under this Agreement, within the scope of work specified in this Agreement. The Consultant may use contractors or other third parties of Consultant's choice to assist in rendering such services. 2. Confidentiality and non-disclosure. NeoMedia, their officers, directors, employees and/or agents, understand that Consultant considers its investors, source firms and compensation arrangements to be confidential and proprietary, and agrees not to disclose any such information to any person or firm outside of NeoMedia without prior written consent from Consultant, except as required by law. NeoMedia's obligations under this paragraph shall survive termination of this Agreement for a period of 24 months. EXHIBIT 10.1-1 3. Consultant shall keep in confidence and shall not disclose or make available to third parties or make any use of any information or documents relating to the products, methods of manufacture, trade secrets, processes, business or affairs or confidential or proprietary information of NeoMedia (other than information in the public domain through no fault of Consultant), except with the prior written consent of NeoMedia. Upon termination of this Agreement Consultant will, upon request by NeoMedia, return all documents, and other materials related to the services provided hereunder furnished to Consultant by NeoMedia. Consultant's obligations under this paragraph shall survive termination of this Agreement. 4. Consultant and NeoMedia further agree to indemnify and hold each other harmless from and against any and all losses, claims or damages, including any legal or other expenses reasonably incurred, in connection with defending against any litigation, whether commenced or threatened, to which either NeoMedia or Consultant may become subject under any statute, caused by, or arising out of any service under this Agreement; provided, however, that neither party shall be liable in any such case to the extent that any loss or damage is found to have resulted from the other party's gross negligence, intentional misrepresentation or violation of any statute or regulation. 5. In the event that any controversy or claim arises out of this Agreement, the parties hereto shall negotiate in good faith to resolve such controversy or claim. If such controversy or claim cannot be settled by the parties through negotiation, such controversy or claim shall be settled by binding arbitration. During the arbitration, both parties shall continue to perform their obligations under this Agreement unless the Agreement has been terminated. In addition to any other recovery, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs thereby incurred. 6. If any provision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby. Further, a waiver of the non-performance of any provision of this Agreement must be in writing and shall apply only to the particular non-performance involved and shall not constitute an amendment, change or modification of this Agreement or apply to any other performance requirement. 7. This agreement shall inure to the benefit of and be binding on the respective parties hereto and the respective executors, administrators, successors and assigns. 8. If accepted by NeoMedia and Consultant below, this Agreement shall constitute a binding agreement between NeoMedia and Consultant. This Agreement reflects the entire agreement between NeoMedia and Consultant, and the terms herein shall not be modified except by a written amendment signed by the parties hereto. The signatories below acknowledge that they have the necessary authority of their respective parties, including board approval, if required, to enter into this Agreement. 9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New Jersey. 10. The Consultant is not a registered broker and will not provide the services of a broker. If it is necessary to utilize the services of a registered broker, any fees and/or costs of such a broker shall be borne by NeoMedia. AGREED AND ACCEPTED: GERALD EICKE NEOMEDIA TECHNOLOGIES Signature: /S/ GERALD EICKE Signature: /S/ CHARLES T. JENSEN ------------------------ ---------------------- Title: Title: President & COO ------------------------ ---------------------- Date: 11/25/02 Date: 11/21/02 ------------------------ ----------------------- EXHIBIT 10.1-2 EX-23 5 neomedia_exh23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to the incorporation by reference in this registration statement on Form S-8 of our report dated March 28, 2002, on our audit of the consolidated financial statements of NeoMedia Technologies, Inc. as of December 31, 2001 and for the year then ended. /S/ STONEFIELD JOSEPHSON, INC. - ----------------------------------- Certified Public Accountants Irvine, California November 27, 2002 EXHIBIT 23.1-1 -----END PRIVACY-ENHANCED MESSAGE-----