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.
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(Name of Registrant in its charter)
DELAWARE 36-3680347
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(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
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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
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Common Stock (1) 3,600,000 $0.0265 $ 95,400.00 $8.78
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(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
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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.
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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.
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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
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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
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/s/ Charles W. Fritz Chairman of the Board and Director July 22, 2003
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Charles W. Fritz
/s/ William E. Fritz Secretary and Director July 22, 2003
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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,
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David A. Dodge and Controller July 22, 2003
/s/ James J. Keil Director July 22, 2003
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James J. Keil
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