-----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, SvyNEhBHutJS3JIgYbyecTl1Nwhhz76IbzcGDTwtLN8XnZODYFMcolY3/+uWTzQh 9Fw7hTqS/QwAYwFsJ2s2+g== 0001144204-03-003879.txt : 20030722 0001144204-03-003879.hdr.sgml : 20030722 20030722160226 ACCESSION NUMBER: 0001144204-03-003879 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030722 EFFECTIVENESS DATE: 20030722 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: 333-107239 FILM NUMBER: 03796567 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 fs8.txt As filed with the Securities and Exchange Commission on July 22, 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 (I.R.S. Employer incorporation or organization) Identification No.) 2201 SECOND STREET, SUITE 402 FORT MYERS, FLORIDA 33901 239-337-3434 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) MARTHA REFKIN 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 David A. Dodge Kirkpatrick & Lockhart LLP, Suite 200 NeoMedia Technologies, Inc. 201 South Biscayne Blvd. 2201 Second Street, Suite 600 Miami, FL 33131 Fort Myers, Florida 33901 (305) 539-3300 (239) 337-3434 (305) 358-7095 Fax (239) 337-3668 Fax
CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------------------- Proposed Proposed Maximum Maximum Amount Offering Aggregate Amount of Title of Securities To be Price per Offering Registration to be Registered Registered Share Price Fee - ---------------------------------------------------------------------------------------------------------------------------- Common Stock (1) 3,600,000 $0.0265 $ 95,400.00 $8.78 - ----------------------------------------------------------------------------------------------------------------------------
(1) Represents shares of common stock issued directly to Martha Refkin, an unrelated consultant, for consulting services. 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 July 21, 2003. 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, 2002. (b) Form 10-QSB for the three-month period ending March 31, 2003. (c) Form 8-K dated March 19, 2003, disclosing that the Company had entered into a Memorandum of Terms to merge with Loch Energy, Inc. (d) Form 8-K dated April 24, 2003, disclosing that the Company had sold 25,000,000 shares of common stock at a price of $0.01 per share to William E. Fritz, a member of the Company's Board of Directors. The Company also disclosed that it had granted 15,445,967 shares of common stock to Charles W. Fritz, Chairman of the Board of Directors, as payment of approximately $154,000 in liabilities owed by the Company to Charles W. Fritz. (e) The description of the Company's Common Stock, par value $0.01 per share (the "Common Stock"), which is contained in the Company's Registration Statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on November 18, 1996, including any amendment or report filed with the 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 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 3 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 ("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 5.1 Opinion of Kirkpatrick & Lockhart LLP re: Legality (filed herewith) 10.1 Consulting Agreement between NeoMedia Technologies, Inc. and Martha Reflin (filed herewith) 23.1 Consent of Stonefield Josephson, Inc., current independent auditors of NeoMedia Technologies, Inc. (filed herewith) 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. 4 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. 5 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 July 22, 2003. NEOMEDIA TECHNOLOGIES, INC. By: /s/ Charles T. Jensen ------------------------------------------------------- Charles T. Jensen, President, Chief Operating Officer, and Acting Chief Executive Officer 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 July 22, 2003 - -------------------- Charles W. Fritz /s/ William E. Fritz Secretary and Director July 22, 2003 - -------------------- William E. Fritz /s/ Charles T. Jensen President, Chief Operating Officer, Charles T. Jensen Acting Chief Executive Officer, and Director July 22, 2003 /s/ David A. Dodge Vice President, Chief Financial Officer, - ------------------ David A. Dodge and Controller July 22, 2003 /s/ James J. Keil Director July 22, 2003 - ----------------- James J. Keil
6 EX-5.1 3 ex5_1.txt EXHIBIT 5.1 July 22, 2003 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 3,600,000 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-10.1 4 ex10_1.txt EXHIBIT 10.1 CONSULTING AGREEMENT This agreement (the "Agreement") is entered into by Martha Refkin (the "Consultant"), and NeoMedia Technologies, Inc. ("NeoMedia"), and sets forth the terms and conditions for services to be rendered by Consultant on behalf of NeoMedia. Services of the Consultant Martha Refkin will serve as consultant to NeoMedia and advise and assist NeoMedia in developing an effective financial strategy, and assist and advise 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 3,600,000 shares of NeoMedia common stock, $0.01 par value, representing the "Consulting Fee". The consulting services will be for a period of one 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. The shares issued to satisfy the Consulting Fee shall be registered for re-sale with the US Securities and Exchange Commission by the Company immediately upon execution of the Agreement. 2. Travel expenses. The Consulting Fee shall satisfy all travel expenses due from NeoMedia to the Consultant as of the date of this contract. From the contract date forward, Consultant shall be responsible for his own travel expenses relating to the duties outlined above. NeoMedia shall not be responsible for reimbursement of such travel expenses. Additional Terms o This Agreement will commence with your signing this Agreement, and will continue for a period of one year. 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. 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. 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 Florida. 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: Martha Refkin NeoMedia Technologies, Inc. Signature: /s/ Martha Refkin Signature: /s/ Charles T. Jensen ---------------------------------- --------------------- Date: July 21, 2003 Title: President --------------------------------------- ------------------------- Date: July 21, 2003 -------------------------- EX-23.1 5 ex23_1.txt EXHIBIT 23.1 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to the incorporation by reference in this registration statement on Form S-8 for the registration of shares issued under a consulting agreement with Martha Refkin, of our report dated April 2, 2003, on our audit of the consolidated financial statements of NeoMedia Technologies, Inc. as of December 31, 2002 and for the year then ended. /S/ STONEFIELD JOSEPHSON, INC. Certified Public Accountants Irvine, California July 18, 2003 -----END PRIVACY-ENHANCED MESSAGE-----