As filed with the Securities and Exchange Commission on December 17, 1997
SEC File No.333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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NEOMEDIA TECHNOLOGIES, INC.
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(Name of Small Business Issuer as specified in its charter)
DELAWARE 36-3680347
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2201 SECOND STREET
SUITE 600
FORT MYERS, FLORIDA 33901
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(Address and Telephone Number of Principal Executive Offices)
FIRST AMENDMENT AND RESTATEMENT OF NEOMEDIA TECHNOLOGIES, INC.
(FORMERLY KNOWN AS DEV-TECH ASSOCIATES, INC.) 1996 STOCK OPTION PLAN
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(Full Title of the Plan)
CHARLES W. FRITZ
2201 SECOND STREET, SUITE 600
FORT MYERS, FLORIDA 33901
941-337-3434
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(Name, address and telephone number of Agent for Service)
Copies to:
Barton J. Springer, Esq.
Fishman, Merrick, Miller, Genelly, Springer,
Klimek & Anderson, P.C.
30 N. LaSalle Street
Chicago, IL 60602
312-726-1224
312-726-2649 - Fax
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par 1,500,000 (2) $4,116,053 $1,214.24
value
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) In accordance with Rule 457(h), the aggregate offering price of shares of
common stock registered hereby issued upon exercise of outstanding options
granted under the Registrant's 1996 Stock Option Plan is based upon the per
share exercise price of such options, the average of which is $2.66 per
share. With respect to 42,848 shares of common stock to be issued upon
exercise of options which have not been granted and which the Registrant is
authorized to issue under the Stock Option Plan, the aggregate offering
purchase price is estimated solely for purposes of calculating the
registration fee in accordance with Rule 457(h) on the basis of the price
of securities of the same class as determined in accordance with Rule
457(c), using the closing price of the Common Stock, as reported by the
NASDAQ SmallCap(SM) Market, on December 16, 1997, which was $7.38 per share.
</FN>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to the Note to
Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by NeoMedia Technologies, Inc. (the
"Registrant") with the Securities and Exchange Commission ("Commission") are
hereby incorporated in this Registration Statement by this reference:
(a) The Registrant's Annual Report on Form 10-KSB for the year
ended December 31, 1996, as amended on Form 10-KSB/A filed on June 20,
1997;
(b) The Registrant's Quarterly Reports on Form 10-QSB for the
quarters ended March 31, 1997, June 30, 1997, and September 30, 1997;
(c) The Current Reports of the Registrant on Form 8-K dated
August 30, 1997, September 16, 1996, September 25, 1997, as amended on Form
8-K/A filed on December 2, 1997, and November 10, 1997; and
(d) The description of the Registrant's Common Stock, par value
$.01 per share (the "Common Stock"), which is contained in the Registrant's
Registration Statement on Form 8-A filed under the Securities Exchange Act
of 1934, as amended ( the "Exchange Act"), including any amendment or
report filed for the purpose of updating such description, and any
amendment or report filed with the Commission for the purpose of updating
such description of Common Stock.
All reports and documents filed by the Registrant after the date hereof
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby 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. Any statement
contained
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herein or any document, all or a portion of which is incorporated or deemed to
be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMES, EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant hereby incorporates by this reference the section entitled
"Management-Limitation of Liability and Indemnification", and Part II, Item 24,
of its Post Effective Amendment No. 1 to the Registrant's Registration Statement
on Form SB-2 heretofore filed with the Commission (Commission File No.
333-5534), which such Post Effective Amendment No. 1 to Registrant's
Registration Statement was declared effective by the Commission on August 25,
1997.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
With respect to options granted to employees under the First Amendment and
Restatement of the Registrant's 1996 Stock Option Plan (the "Plan") to purchase
shares of Common Stock and the Common Stock issued or issuable upon exercise of
such options under the Plan, the Registrant believes such transactions exempt
under Section 4(2) of the Securities Act of 1933, as amended, and Regulation D
promulgated thereunder in that such transactions were transactions not involving
any public offering and in compliance with Rule 504 promulgated by the
Commission.
ITEM 8. EXHIBITS.
The following Exhibits are hereby filed as part of this Registration:
*4.1 Articles of Incorporation of Dev-Tech Associates, Inc. and
amendment thereto
*4.2 By-laws of Dev-Tech Associates, Inc.
*4.3 Restated Certificate of Incorporation of DevSys, Inc.
*4.4 By-laws of DevSys, Inc.
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*4.5 Articles of Merger and Agreement and Plan of Merger of DevSys,
Inc. and Dev-Tech Associates, Inc.
*4.6 Certificate of Merger of Dev-Tech Associates, Inc. into DevSys,
Inc.
*4.7 Dev-Tech Associates, Inc. 1996 Stock Option Plan
*4.8 First Amendment and Restatement of Dev-Tech Associates, Inc. 1996
Stock Option Plan
*4.9 Form of Stock Option Agreement - Dev-Tech Associates, Inc.
5.1 Opinion of Fishman, Merrick, Miller, Genelly, Springer, Klimek &
Anderson, P.C.
23.1 Consent of Fishman, Merrick, Miller, Genelly, Springer, Klimek &
Anderson, P.C. (included in Exhibit 5.1)
23.2 Consent of Coopers and Lybrand L.L.P.
24.1 Power of Attorney (contained on the signature page hereof)
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* Incorporated by reference from Registration Statement on Form SB-2, SEC
#333-5534, declared effective on November 25, 1996.
ITEM 9. UNDERTAKINGS.
(a) The 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:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
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(iii) 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;
provided, however, paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment is incorporated by
reference in the Registration Statement from periodic reports filed by the
Registrant under the Securities Exchange Act of 1934, as amended.
(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 file a post-effective amendment to remove from
registration any of the securities being registered that remain unsold at
the end of the offering.
(b) The Registrant hereby undertakes that, for purpose of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or 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 in connection 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 Securities 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 the 17th day of
December, 1997.
NEOMEDIA TECHNOLOGIES, INC.
By: /s/ CHARLES W. FRITZ
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Charles W. Fritz, President
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Charles W. Fritz his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution for him in his name, place and stead, in any
and all capacities, to sign this Registration Statement and any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8 and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ CHARLES W. FRITZ
- ---------------------- President, Chief Executive December 17, 1997
Charles W. Fritz Officer and Director
/s/ WILLIAM E. FRITZ Secretary and Director December 17, 1997
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William E. Fritz
/s/ CHARLES T. JENSEN Chief Financial Officer, December 17, 1997
- ----------------------- Treasurer and Director
Charles T. Jensen
/s/ ROBERT T. DURST, JR. Director December 17, 1997
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Robert T. Durst, Jr.
/s/ A. HAYES BARCLAY Director December 17, 1997
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A. Hayes Barclay
/s/ JAMES J. KEIL Director December 17, 1997
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James J. Keil
/s/ PAUL REECE Director December 17, 1997
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Paul Reece
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EXHIBIT 5.1
December 17, 1997
NeoMedia Technologies, Inc.
2201 Second Street
Suite 600
Fort Myers, Florida 33901
Attention: President
RE: NEOMEDIA TECHNOLOGIES, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the form of registration statement on Form S-8 (the
"Registration Statement") being filed by NeoMedia Technologies, Inc., a Delaware
corporation (the "Company"), with the United States Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of a total of 1,500,000 shares of the Company's common stock, $.01
par value ("Common Stock"), issuable under the First Amendment and Restatement
of the Company's 1996 Stock Option Plan (the "Plan").
We have acted as securities counsel for the Company in connection with
the preparation of the Registration Statement, and we have examined the
corporate proceedings relating to the authorization, issuance and sale of the
securities referred to above. For purposes of this opinion, we have assumed (i)
the accuracy and completeness of all data supplied by the Company, its officers,
directors or agents, and (ii) that all requisite authorizations, approvals,
consents or exemptions under the securities laws of the various states and other
jurisdictions of the United States shall have been obtained.
Based on the foregoing, it is our opinion that the 1,500,000 shares of
Common Stock to be issued under the Plan against full payment in accordance with
the terms and conditions of the Plan will be legally and validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ FISHMAN, MERRICK, MILLER, GENELLY
SPRINGER, KLIMEK & ANDERSON, P.C.
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Fishman, Merrick, Miller, Genelly,
Springer, Klimek & Anderson, P.C.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
NeoMedia Technologies, Inc. (the "Company") on Form S-8 (File No. 333-_____) of
our report dated March 14, 1997, on our audits of the consolidated financial
statements of NeoMedia Technologies, Inc. and subsidiaries as of December 31,
1996 and 1995, and for the years then ended, which report is included in
Company's Annual Report on Form 10-KSB for the year ended December 31, 1996, as
amended on Form 10-KSB/A filed on June 20, 1997, and our report dated October
24, 1997 on our audit of the financial statements of Allegiant Legacy Solutions,
Inc. as of December 31, 1996 and for the period from inception on February 16,
1996 to December 31, 1996, which report is included in the Company's Form 8-K/A
filed December 2, 1997.
/s/ COOPERS & LYBRAND L.L.P.
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Coopers & Lybrand L.L.P.
Chicago, Illinois
December 17, 1997
