-----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, BB2XW29pAHSDcOnRdQ+NYJV/Ne8g59SCgubH14fCDCWdIkxE0utryDNb1dZ588hX 7yV7RN4B0kMR0wCj/ewQAw== 0001144204-05-040570.txt : 20051221 0001144204-05-040570.hdr.sgml : 20051221 20051221140805 ACCESSION NUMBER: 0001144204-05-040570 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20051220 ITEM INFORMATION: Entry into a Material Definitive Agreement FILED AS OF DATE: 20051221 DATE AS OF CHANGE: 20051221 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: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-21743 FILM NUMBER: 051278068 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 8-K 1 v031810_8k.txt U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported): December 20, 2005 NEOMEDIA TECHNOLOGIES, INC. --------------------------- (Exact Name of Registrant as Specified in its Charter) Delaware 0-21743 36-3680347 - ---------------------------------- ------------------ ------------------------ (State or Other Jurisdiction (Commission (IRS Employer Incorporation) File Number) Identification No.) 2201 Second Street, Suite 600, Fort Myers, Florida 33901 - ---------------------------------- ------------------ ------------------------ (Address of Principal Executive (Zip Code) Offices) (239) - 337-3434 ---------------------------- (Registrant's Telephone Number, including Area Code) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT Distribution Agreement On December 20, 2005, NeoMedia Technologies, Inc. ("NeoMedia") executed a definitive supply agreement (the "Agreement") with DuPont de Nemours (Belgium) BVBA of Belgium, a subsidiary of IE DuPont ("DuPont"), under which NeoMedia will distribute DuPont's automobile refinish paint throughout the People's Republic of China. The Agreement calls for NeoMedia to serve as a non-exclusive distributor of DuPont products to Beijing Sino-US Jinche Yingang Auto Technological Services Limited ("Jinche") in the People's Republic of China. NeoMedia previously signed a distribution agreement with Jinche under which Jinche will distribute and use NeoMedia's micro paint repair products at its automotive service facilities throughout China. The Agreement is attached hereto as exhibit 16.1. On December 21, 2005, NeoMedia issued a press release with respect to the Agreement, attached hereto as Exhibit 16.2. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. NeoMedia Technologies, Inc. ---------------------------------------- (Registrant) Date: December 21, 2005 By: /s/ Charles T. Jensen ----------------- ------------------------------------ Charles T. Jensen, President, Chief Executive Officer and Director 3 EXHIBIT INDEX Exhibit No. Description ----------- ----------- 16.1 Supply agreement between NeoMedia and DuPont 16.2 Press release with respect to supply agreement 4 EX-16.1 2 v031810_ex16-1.txt Exhibit 16.1 Supply Agreement This supply agreement (the "Agreement") is entered into on and becomes effective as of December 15, 2005 by and between DuPont de Nemours (Belgium) BVBA, a company organized and existing under the laws of Belgium with its main business address at Antoon Spinoystraat 6, B-2800 Mechelen, Belgium ("DuPont") and NeoMedia Technologies Inc., a company organized and existing under the laws of the State of Florida with its main business address at 2201 Second Street, Suite 600, Fort Myers, FL-33901, U.S.A. ("NeoMedia") Preamble DuPont agrees to supply and deliver and NeoMedia agrees to purchase and accept the Product specified herein upon the following terms and conditions: 1. Product and Use Product shall mean refinish coating products manufactured by DuPont and its affiliates (the "Product"). Neomedia shall purchase the Products from DuPont and its affiliates for resale to Jinche Yingang Automobile Co. ("Jinche") which will in turn resell those products to Auto Tech Services Ltd. ("Automart") and its sales network in the People's Republic of China ("PRC"). For the avoidance of any doubt, the Products can only be used by Automart's sales network members in the PRC. NeoMedia shall provide to DuPont a list of all bodyshops belonging to Automart's sales network shortly after signing of this Agreement and shall maintain this list up-to-date. 2. Forecasts, Orders and Shipment As of the date hereof, it is the Parties' expectation that NeoMedia will purchase most of its and Jinche's Products requirements in the PRC from DuPont and its affiliates. NeoMedia shall send DuPont rolling forecasts of its Products requirements for eighteen (18) months and shall update those forecasts every calendar month, except for the current calendar month and the two (2) following one (1) month periods which shall remain unchanged and for which NeoMedia shall issue firm orders. The deviation between the ordered quantities of any Product grade for the third (3rd) calendar month after the current month and the forecasted quantities for such third (3rd) calendar month shall be comprised between one hundred and twenty-five percent (125%) and seventy-five percent (75%) of the forecasted quantities. The deviation between the ordered quantities of all Product grades for the third (3rd) calendar month after the current month and the forecasted quantities for such third (3rd) calendar month shall be comprised between one hundred and ten percent (110%) and ninety percent (90%) of the forecasted quantities. NeoMedia shall provide DuPont with its schedule for shipment of Product at least sixty (60) days in advance of the requested delivery date. DuPont and its affiliates will confirm the expected delivery date in writing. The Parties will endeavour to order and deliver the contracted quantities of the Product as evenly as possible over the months of the year and NeoMedia's estimates and DuPont and its affiliates' deliveries shall be drawn up to maintain this principle. DuPont or its affiliates shall within an appropriate period after receiving each firm order confirm its ability to supply the binding quantities. Acceptance by DuPont or its affiliates of the firm orders shall constitute a binding contract to supply and purchase. In the event DuPont or its affiliates face capacity limitations despite its production lines operating under normal conditions at full capacity, such that it is unable to satisfy the needs of NeoMedia hereunder as they result from firm agreements entered into prior to such production constraint, then, for so long as such insufficiency shall continue, DuPont and its affiliates shall apportion in a fair and equitable manner its actual available capacity pro rata as between its own customers and NeoMedia. Such pro rata apportionment shall take into account the recent historical supply of Product by DuPont and its affiliates to such customers and to NeoMedia. 3. Price DuPont and its affiliates' prices to NeoMedia shall be those negotiated and agreed in writing with NeoMedia from time to time. The initially agreed upon list price for Product is set out in Schedule 3.1. Agreement as to future prices shall be reached after mutual discussion and if no agreement is reached after such discussions then DuPont may give NeoMedia thirty (30) days notice in writing of any changes in prices and the prices so changed shall apply to Product delivered after the expiration of such notice. DuPont and its affiliates shall in addition pay NeoMedia the discounts set out in Schedule 3.2 4. Transfer of Risks and Transfer of Title DuPont and its affiliates shall deliver the Products FOB European port (Incoterms 2000) to the address in the PRC indicated by NeoMedia at the time the order is placed. Title to the Products shall transfer to NeoMedia upon shipment from European port. 5. Warranties DuPont and its affiliates warrant that they are transferring good title to all Product transferred, and that such Product shall meet the specifications, descriptions and warranties set forth in DuPont's literature referring to the Product supplied hereunder. Except for the above, and to the extent permitted by law, DuPont and its affiliates hereby disclaim all other warranties, express or implied, or otherwise including warranties of merchantability or fitness for a particular purpose. NeoMedia assumes all risk and liability resulting from the use of the Product delivered hereunder, whether used singly or in combination with other products. 6. Liability To the fullest extent permitted by law, all terms, conditions, warranties (other than those set forth herein above) and representations with respect with the Product are hereby excluded, and in no event shall DuPont and its affiliates be liable for (i) any claims or damages, including claims relating to the combination of the Product with any other product(s), and (ii) special, direct, indirect or consequential damages. DuPont and its affiliates' liability in respect of the Product shall at all times be limited, at the election of DuPont and its affiliates to (i) the repair or replacement of the Product, or (ii) the purchase price of the Product in respect of which a claim is made (where the price has been paid). 7. Claims NeoMedia's claim of any kind, whether as to Products delivered or for non-delivery of Products must be notified to DuPont in writing within thirty (30) days from date of delivery, or the date fixed for delivery (in the case of non-delivery). Failure to give notice of claim within thirty (30) days from date of delivery, or the date fixed for delivery (in the case of non-delivery), shall constitute a waiver by NeoMedia of all claims in respect of such Products. 8. Term of the Agreement This Agreement shall be effective from the date stated herein above and shall terminate upon receipt by DuPont of a notice from NeoMedia informing DuPont that it has incorporated a legal entity in the PRC ("NeoMedia China") and that NeoMedia China has obtained all requisite business licenses and permits to conduct business lawfully in PRC. At such point, NeoMedia shall assign all rights and obligations under this Agreement to NeoMedia China, and DuPont shall assign all rights and obligations to DuPont Trading (Shanghai) Co. Limited ("DPTS"). Immediately prior to such assignment, NeoMedia China and DPTS shall translate this Agreement into Chinese and amend the shipment terms to reflect the new situation, or if the Parties so agree in good faith, they can enter into a new agreement incorporating the basic terms of this Agreement and reflecting the new situation resulting from the formation of NeoMedia China. Prior termination of this Agreement may however be made by either Party through a written termination notice sent to the other Party in the event (i) the other Party is in default of its obligations under this Agreement, which default, if capable of remedy, has not been remedied by the defaulting Party within thirty (30) days after written notice of such default is given by the other Party; (ii) the other Party becomes insolvent or has a receiver, administrator, liquidator or other similar officer appointed; (iii) the other Party's ownership changes, for example by way of acquisition, divestiture or joint venture; or (iv) upon termination of the technical services agreement between DPTS and Automart. 9. Assignment Except as provided in Section 8 above, neither Party shall assign or transfer this Agreement, in whole or in part, or any interest arising under this Agreement without the prior written consent of the other Party. 10. Notices Any official notices under this Agreement shall be delivered to: if to DuPont: DuPont China Holdings Co., Ltd Building 7, 4299 Yin Du Road Xin Zhuang Industrial Development Zone Shanghai 201108, China Attn. Business Director Refinish Coatings tel. +86.21.54425855 fax +86.21.54425580 if to NeoMedia: NeoMedia Technolgies Inc. 2201 Second Street Suite 600, Fort Myers, FL-33901, U.S.A. Attn. Vice President, General Manager tel. +1.239.337.3434 fax +1.239.337.3668 11. Replacement of Prior Agreements This Agreement shall supersede any oral or written contracts dealing with the same subject matter as referenced herein. 12. Force Majeure No liability shall result to either Party from delay in performance or from non-performance of its obligations hereunder caused by circumstances beyond the control of the Party who has delayed performance or not performed. For the purpose of this Agreement, the following circumstances shall be deemed to be beyond the control of such Party: act of God, war, riots, national emergency, fire explosion, flood, strike, lock-outs, voluntary or involuntary compliance with rules, regulations or any order of any authority, accident, breakage or breakdown of plant, machinery or apparatus or shortage of raw material any of which cause a total or partial shutdown of any of DuPont's or NeoMedia's, Jinche or Automart's operations. The non-performing Party shall be diligent in attempting to remove any such cause and shall promptly notify the other Party of its extent and probable duration. If the non-performing Party who has delayed performance or not performed on account of circumstances beyond its control is unable to remove the causes within seven (7) days, the other Party shall have the right to terminate, without penalty, the entire Agreement or any portion of it. 13. Terms and conditions Unless expressly contrary to the terms herein, supplies of Product hereunder shall be subject to DuPont's general terms and conditions of sales set forth on the reverse of DuPont's then current invoice form, of which NeoMedia acknowledges receipt, to the exclusion of any other terms and conditions. 14. Law applicable and jurisdiction This Agreement shall be subject to the laws of Switzerland to the exclusion of its conflict of laws principles and to the exclusion of the 1980 United Nations Conventions on the International Sale of Goods. The Courts of Geneva, Switzerland shall have exclusive jurisdiction on any litigation relating to or arising under this Agreement. NeoMedia Technologies Inc. DuPont de Nemours (Belgium) BVBA By: /s/ Charles T. Jensen By: /s/ Michael W. McMillan EX-16.2 3 v031810_ex16-2.txt Exhibit 16.2 For Immediate Release Press Contacts: Charles T. Jensen David A. Kaminer NeoMedia Technologies, Inc. The Kaminer Group +(239) 337-3434 +(914) 684-1934 cjensen@neom.com dkaminer@kamgrp.com NeoMedia Adds DuPont Paint to Products Distributed in China FT. MYERS, Fla., Dec. 21, 2005 - NeoMedia Technologies, Inc. (OTC BB: NEOM), today announced that it has signed an agreement with DuPont de Nemours (Belgium) BVBA of Belgium, a subsidiary of E.I. DuPont de Nemours (NYSE: DD), to distribute its automobile refinish paint through the People's Republic of China via Jinche Yingang Auto Technological Services Limited. Charles T. Jensen, president and CEO of NeoMedia, said the agreement gives NeoMedia the rights to add DuPont to the products it sells for distribution to Jinche Yingang (Jinche Yingang Automobile Co.), a Beijing-based joint venture operating under the laws of the People's Republic of China specializing in automobile sales, financing, insurance and repair. Michael W. McMillan, global business development manager for DuPont at its Delaware world headquarters, said his company was "looking forward to continuing our growth in the vast auto aftermarket in China via this unique channel. "NeoMedia has already made important inroads in China in establishing a relationship with the Jinche Yingang Automobile Co.," he said. "DuPont believes that our world-class products and services will be immediately popular in China via this channel, and anticipates a strong reception through NeoMedia and Jinche Yingang." `A New and Growing Auto Aftermarket ` NeoMedia's Jensen called China "a new and growing auto aftermarket still very much in its relative infancy. It is our belief that China presents a world of opportunity to NeoMedia and the other companies now becoming involved in commerce there. Mr. Jensen said that "doing business with a global giant has significantly boosted NeoMedia's exposure and position in the auto aftermarket. "We are proud to add DuPont to the companies and products we represent, and are excited about 2006 and beyond in China. "The chairman and CEO of Jinche Yingang, Pang Gui-San, shares our enthusiasm," he said, "and joins me in welcoming DuPont to the array of products his company will offer throughout China." Along with distribution products from NeoMedia and the companies with which it does business, Jinche Yingang will also serve as a non-exclusive distributor and user of NeoMedia's high technology Micro Paint Repair products and systems at its automotive service facilities throughout China, Mr. Jensen said. About NeoMedia Micro Paint Repair, Inc. NeoMedia Micro Paint Repair, Inc., is a business unit of NeoMedia Technologies, Inc. Formerly known as CSI International Inc. (www.micropaint.net), the company specializes in products and services for the worldwide micro paint repair industry, including a system and processes utilizing proprietary technology. About NeoMedia Technologies, Inc. NeoMedia Technologies, Inc. (www.NEOM.com), is a developer and international marketer of software and patented technologies, including PaperClick(R) for Camera Phones(TM), PaperClick(TM) and the PaperClick Mobile Go-Window(TM) which link products, print and physical objects directly to targeted online data. NeoMedia also offers expertise in homeland security and e-authentication applications, and its Systems Integration Group specializes in providing expert-based IT consulting, hardware, and software solutions. This press release contains forward-looking statements within the meaning of section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. With the exception of historical information contained herein, the matters discussed in this press release involve risk and uncertainties. Actual results could differ materially from those expressed in any forward-looking statement. PaperClick is a registered trademark, and PaperClick For Cell Phones and PaperClick Mobile Go-Window are trademarks of NeoMedia Technologies, Inc. Other trademarks are properties of their respective owners. -----END PRIVACY-ENHANCED MESSAGE-----