As filed with the Securities and Exchange Commission on May 2, 2000
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 600
FORT MYERS, FLORIDA 33901
941-337-3434
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
NEOMEDIA TECHNOLOGIES, INC.
1998 STOCK OPTION PLAN
(Full Title of the Plan)
CHARLES W. FRITZ
2201 SECOND STREET, SUITE 600
FORT MYERS, FLORIDA 33901-3083
941-337-3434
941-337-3668 - FAX
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH COPIES TO:
SCOTT P. SLYKAS, ESQ. MARIANNE LEPERA, ESQ.
MERRICK & KLIMEK, P.C. NEOMEDIA TECHNOLOGIES, INC.
401 SOUTH LASALLE ST. 2201 SECOND STREET
SUITE 1302 SUITE 600
CHICAGO, ILLINOIS 60605 FORT MYERS, FLORIDA 33901
(312) 294-6044 941-337-3434
(312) 294-6045 941-337-3668 FAX
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<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(3) Fee(3)
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Common Stock, $.01 par
value 1,329,900 Shares $1.88 - $9.0625 $7,669,490 $2,132.13
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
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(continuation of facing page)
(1) Represents the maximum number of shares of Common Stock to be issued by
the Company upon the exercise of (i) up to 960,900 (vested) options
issued under the 1998 Stock Option Plan prior to December 31, 1999, and
(ii) up to 369,000 options to be issued with currently unknown exercise
prices at a future date. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
1998 Stock Option Plan described herein.
(2) Represents the range of prices at which vested options issued under the
1998 Stock Option Plan as of December 31, 1999, may be exercised to
acquire shares of the Company's Common Stock, $1.88 being the minimum
exercise price for options currently issued under the 1998 Stock Option
Plan, and $10.13, being the maximum exercise price for options
currently issued under the 1998 Stock Option Plan. A total of 369,000
shares being registered under this Registration Statement are subject
to issuance at prices that are currently undeterminable; consequently,
$929.65 of the total 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 NASDAQ SmallCap
Market on April 26, 2000.
(3) Represents the maximum aggregate offering price for shares of Common
Stock subject to issuance under the Plan, calculated as follows: 40,000
options to purchase 1 share of Common Stock at an exercise price of
$1.88 per share; 6,000 options to purchase 1 share of Common Stock at
an exercise price of $2.625 per share; 76,000 options to purchase 1
share of Common Stock at an exercise price of $2.63 per share; 800
options to purchase 1 share of Common Stock at an exercise price of
$2.69 per share; 6,400 options to purchase 1 share of Common Stock at
an exercise price of $2.88 per share; 76,000 options to purchase 1
share of Common Stock at an exercise price of $2.91 per share; 127,800
options to purchase 1 share of Common Stock at an exercise price of
$3.41 per share; 60,000 options to purchase 1 share of Common Stock at
an exercise price of $3.44 per share; 2,000 options to purchase 1 share
of Common Stock at an exercise price of $3.53 per share; 122,800
options to purchase 1 share of Common Stock at an exercise price of
$3.625 per share; 1,600 options to purchase 1 share of Common Stock at
an exercise price of $3.75 per share; 1,000 options to purchase 1 share
of Common Stock at an exercise price of $4.50 per share; 1,500 options
to purchase 1 share of Common Stock at an exercise price of $4.91 per
share; 400 options to purchase 1 share of Common Stock at an exercise
price of $5.00 per share; 270,000 options to purchase 1 share of Common
Stock at an exercise price of $5.125 per share; 800 options to purchase
1 share of Common Stock at an exercise price of $5.25 per share; 8,800
options to purchase 1 share of Common Stock at an exercise price of
$7.00 per share; 82,000 options to purchase 1 share of Common Stock at
an exercise price of $7.31 per share; 40,000 options to purchase 1
share of Common Stock at an exercise price of $7.81 per share; 7,000
options to purchase 1 share of Common Stock at an exercise price of
$8.38 per share; 22,000 options to purchase 1 share of Common Stock at
an exercise price of $8.44 per share; 2,000 options to purchase 1 share
of Common Stock at an exercise price of $8.50 per share; 2,000 options
to purchase 1 share of Common Stock at an exercise price of $8.56 per
share; 2,000 options to purchase 1 share of Common Stock at an exercise
price of $9.25 per share; 2,000 options to purchase 1 share of Common
Stock at an exercise price $10.13 per share, and 369,000 options to
purchase 1 share of Common Stock at an exercise price (or prices) to be
determined at a future date, $929.65 of the total registration fee
for the shares underlying said options being calculated (estimated)
hereunder pursuant to Rule 457 (h), and which figure is based upon the
closing price of the Company's Common Stock on the NASDAQ SmallCap
Market on April 26, 2000.
ii
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PART I
Pursuant to the Note to Part I of Form S-8, information required under
Items 1 and 2 of Form S-8 is omitted as a part of this Registration Statement.
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-KSB for the fiscal
year ended December 31, 1999.
(b) The description of the Company's Common Stock, par value $.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 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
1
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(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
4 NeoMedia Technologies, Inc. 1998 Stock Option Plan
(incorporated by reference to Exhibit 4 in NeoMedia
Technologies Form 8 Registration Statement as filed
with the SEC on June 14, 1999).
5 Opinion of Merrick & Klimek, P.C.
23.1 Consent of Arthur Andersen, LLP, independent auditors
of NeoMedia Technologies, Inc.
23.2 Consent of KPMG, LLP, former independent auditors of
NeoMedia Technologies, Inc.
2
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23.3 Consent of Merrick & Klimek, P.C. (included in Exhibit
5 opinion letter).
24 Power of Attorney (included on signature page).
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
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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 April 17, 2000.
NEOMEDIA TECHNOLOGIES, INC.
By: /s/ Charles W. Fritz
---------------------------------
Charles W. Fritz, Chief Executive
Officer and Chairman of the Board
THE PLAN
Pursuant to the requirement of the Securities Act of 1933, the Committee which
administers the 1998 Stock Option Plan 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 April 17, 2000.
PLAN:
NEOMEDIA TECHNOLOGIES, INC.
1998 STOCK OPTION PLAN
By: /s/ Charles W. Fritz
--------------------------------
Charles W. Fritz, Chairman of the
Compensation Committee
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.
4
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SIGNATURES TITLE DATE
- ---------- ----- ----
/s/ William F. Goins President and Director 4/17/00
- ----------------------------
William F. Goins III
/s/ Charles W. Fritz Chief Executive Officer,
- ---------------------------- Chairman of the Board and Director 4/17/00
Charles W. Fritz
/s/ William E. Fritz Secretary and Director 4/17/00
- ----------------------------
William E. Fritz
/s/ Charles T. Jensen Chief Financial Officer,
- ---------------------------- Treasurer and Director 4/17/00
Charles T. Jensen
/s/ Robert T. Durst, Jr. Director 4/17/00
- ----------------------------
Robert T. Durst, Jr.
/s/ A. Hayes Barclay Director 4/17/00
- ----------------------------
A. Hayes Barclay
/s/ James J. Keil Director 4/17/00
- ----------------------------
James J. Keil
/s/ Paul Reece Director 4/17/00
- ----------------------------
Paul Reece
/s/ John A. Lopiano Director 4/17/00
- ----------------------------
John A. Lopiano
5
EXHIBIT 5
May 2, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8 Relating to the
NeoMedia Technologies, Inc. 1998 Stock Option Plan (the "Plan")
Ladies and Gentlemen:
As legal counsel for NeoMedia Technologies, Inc. a Delaware corporation
(the "Company"), we are rendering this opinion in connection with the
preparation and filing of a registration statement on Form S-8 (the
"Registration Statement") relating to the registration under the Securities Act
of 1933, as amended, of 1,329,900 shares of Common Stock, $.01 par value (the
"Common Stock") subject to exercise under the NeoMedia Technologies, Inc. 1998
Stock Option Plan.
We have examined such instruments, documents and records as we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
Based on such examination, we are of the opinion that the shares of
Common Stock of the Company being registered pursuant to the Registration
Statement are duly authorized shares of Common Stock which, when sold, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
This opinion is to be used only in connection with the Plan and the
issuance of the Common Stock while the Registration Statement is in effect.
Respectfully submitted,
/s/ Merrick & Klimek, P.C.
---------------------------
MERRICK & KLIMEK, P.C.
MK/cs
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 25, 2000 (except with respect to the matters discussed in Note 15, as
to which the date is March 17, 2000), in NeoMedia Technologies, Inc.'s Form
10-KSB for the year ended December 31, 1999.
\s\ARTHUR ANDERSEN LLP
Tampa, Florida,
May 2, 2000
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
NeoMedia Technologies, Inc.:
We consent to the use of our report dated March 12, 1999, which appears in the
Annual Report on Form 10-KSB of NeoMedia Technologies, Inc. ("the Company") for
the year ended December 31, 1999, which Annual Report is incorporated by
reference herein.
Our report contains an explanatory paragraph that states that the Company has
suffered recurring losses from operations, has a significant accumulated
deficit, and a working capital deficiency that raise substantial doubt about its
ability to continue as a going concern. The consolidated financial statements do
not include any adjustments that might result from the outcome of this
uncertainty.
KPMG LLP
May 2, 2000
Miami, Florida
