As filed with the Securities and Exchange Commission on February 14, 2003
SEC Registration No. 333-103172
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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DELAWARE NEOMEDIA 36-3680347
(State or other TECHNOLOGIES, INC. (I.R.S. Employer
jurisdiction of (Name of issuer Identification No.)
incorporation or in its charter)
organization)
2201 SECOND STREET, 7373 CHARLES T. JENSEN
SUITE 402 (Primary Standard 2201 SECOND STREET,
FORT MYERS, FLORIDA 33901 Industrial SUITE 402
(239) 337-3434 Classification FORT MYERS, FLORIDA 33901-3083
(Address and telephone Code Number) (239) 337-3434
number of Registrant's TELECOPIER NO.: (239) 337-3434
principal executive offices) (Name, address, and telephone
number of agent for service)
With copies to:
Clayton E. Parker, Esq.
Kirkpatrick & Lockhart LLP
201 S. Biscayne Blvd., Suite 2000
Miami, FL 33131
Telephone No. (305) 539-3305
Telecopier No.: (305) 358-7095
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
======================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) FEE (2)
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Common stock, par value $0.01 per
share 113,408,376 shares $0.01 $1,134,083.76 $104.34
------------------------------------------------------------------------------------------------------
TOTAL 113,408,376 shares $0.01 $1,134,083.76 $104.34
======================================================================================================
(1) In accordance with Rule 457(c), the price represents the average of the high and low sale
prices of the registrant's common stock on February 10, 2003, on the Over-the-Counter Bulletin
Board.
(2) Previously paid on February 12, 2003.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO
DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS
THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
Subject to Completion, dated February 14, 2003
PROSPECTUS
NEOMEDIA TECHNOLOGIES, INC.
113,408,376 SHARES OF COMMON STOCK
This prospectus relates to the sale of up to 113,408,376 shares of
NeoMedia's common stock by persons who are, or will become, stockholders of
NeoMedia. Please refer to "Selling Shareholders" beginning on page 16. NeoMedia
will receive proceeds from the sale of common stock under the Equity Line of
Credit and from the proceeds from the exercise of the warrants for 1,904,900
shares of common stock. All costs associated with this registration will be
borne by NeoMedia.
The shares of common stock are being offered for sale by the selling
stockholders at prices established on the Over the Counter Bulletin Board. The
prices will fluctuate based on the demand for the shares of common stock. Our
common stock trades on the OTC Bulletin Board under the symbol "NEOM." On
December 3, 2002, the last reported sale price of our common stock on the OTC
Bulletin Board was $0.04 per share.
The selling stockholders consist of:
o Cornell Capital Partners, L.P., which intends to sell up to
102,000,000 shares of common stock.
o Other selling stockholders, who intend to sell up to 11,408,376
shares of common stock.
Cornell Capital Partners is an "underwriter" within the meaning of the
Securities Act of 1933 in connection with the sale of common stock under the
Equity Line of Credit Agreement. Cornell Capital Partners will pay NeoMedia 98%
of the market price of our common stock. NeoMedia has paid Cornell Capital
Partners a one-time commitment fee of 2,000,000 shares of common stock. In
addition, Cornell Capital Partners is entitled to retain 5% of each advance
under the Equity Line of Credit. The 2% discount, the one-time commitment fee
and the 5% retention are underwriting discounts.
NeoMedia has engaged Westrock Advisors, Inc., an unaffiliated registered
broker-dealer, to advise us in connection with the Equity Line of Credit.
Westrock Advisors, Inc. was paid a fee of 62,500 shares of NeoMedia's common
stock.
Brokers or dealers effecting transactions in these shares should confirm
that the shares are registered under applicable state law or that an exemption
from registration is available.
THESE SECURITIES ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK.
BEGINNING ON PAGE 3, WE HAVE LISTED SEVERAL RISK FACTORS WHICH YOU SHOULD
CONSIDER. YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY BEFORE YOU MAKE YOUR
INVESTMENT DECISION.
With the exception of Cornell Capital Partners which is an "underwriter"
within the meaning of the Securities Act of 1933, no other underwriter or person
has been engaged to facilitate the sale of shares of common stock in this
offering. This offering will terminate 24 months after the accompanying
registration statement is declared effective by the Securities and Exchange
Commission. None of the proceeds from the sale of stock by the selling
stockholders will be placed in escrow, trust or any similar account.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is February __, 2003.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth estimated expenses expected to be
incurred in connection with the issuance and distribution of the securities
being registered. NeoMedia will pay all expenses in connection with this
offering.
Securities and Exchange Commission Registration Fee $ 210
Printing and Engraving Expenses $ 2,500
Accounting Fees and Expenses $ 15,000
Legal Fees and Expenses $ 50,000
Miscellaneous $ 17,290
TOTAL $ 85,000
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law, we have included in
our Certificate of Incorporation a provision to eliminate the personal liability
of our directors for monetary damages for breach or alleged breach of their
fiduciary duties as directors, except for liability (i) for any breach of the
director's duty of loyalty to NeoMedia 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 is to eliminate the rights of NeoMedia and
its stockholders (through stockholders' derivative suits on behalf of NeoMedia)
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 NeoMedia 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 NeoMedia provide that
we are required and permitted to indemnify our officers and directors, employees
and agents under certain circumstances. In addition, if permitted by law, we are
required to advance expenses to our officers and directors as incurred in
connection with proceedings against them in their capacity as a director or
officer 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, we are not aware of any pending or threatened litigation or proceeding
involving a director, officer, employee or agent of NeoMedia in which
indemnification would be required or permitted.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers or controlling
persons 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 such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
RECENT SALES OF UNREGISTERED SECURITIES
On December 2, 2002, Jerald Eicke was issued 4,000,000 shares of common
stock in exchange for consulting services rendered. The shares of common stock
were priced at $0.05 totaling a value of $200,000.
On December 2, 2002, NeoMedia issued to Michael Kesselbrenner, a private
investor, a Promissory Note in the principal amount of $165,000, bearing
interest at a rate of 12% per annum, with a maturity of 150 days. In connection
with the default provision of the Promissory Note, NeoMedia entered into a
Pledge Agreement, dated December 2, 2002, by and between NeoMedia and the
Investor under which NeoMedia issued 53,620,020 shares of common stock to an
unrelated third party as collateral for the Promissory Note. In the event of
default, the third party would issue the shares to the Investor, and NeoMedia
would issue additional shares as required to increase Mr. Kesselbrenner's
ownership of securities of NeoMedia to equal 51% of its fully-diluted
outstanding shares at the time of such default.
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On November 12, 2002, NeoMedia and Cornell Capital Partners terminated the
May 2002 Equity Line of Credit Agreement and entered into a new Equity Line of
Credit Agreement with Cornell under which Cornell agreed to purchase up to $10.0
million of NeoMedia's common stock and over the next two years, with the timing
and amount of the purchase at NeoMedia's discretion. The maximum amount of each
purchase is $150,000 with a minimum of seven days between purchases. The shares
will be valued at 98% of the lowest closing bid price during the five day period
following the delivery of a notice of advance by NeoMedia. NeoMedia will pay 5%
of the gross proceeds of each purchase to Cornell as a commission. According to
the terms of the agreement, NeoMedia cannot draw on the line of credit until the
shares underlying the agreement are registered for trading with the Securities
and Exchange Commission. Cornell Capital received a one-time commitment fee
payable in 2,000,000 shares of our common stock. Additionally, Westrock
Advisors, Inc. was paid a fee of 62,500 shares of NeoMedia's common stock for
acting as the placement agent.
In September 2002, NeoMedia issued 1,161,402 shares of common stock upon
exercise of outstanding options by an unrelated consultant at a price of $0.01
per share. The gross proceeds of such transaction were approximately $12,000.
In August 2002, NeoMedia issued 900,000 shares of common stock to 2150
Western Court L.L.C, the landlord of its Lisle, Illinois sales office, as
settlement of a lawsuit relating to past-due and future building rents. The
shares were valued at $0.03 per share, the market price at the date of issuance.
There were no cash proceeds to NeoMedia in this transaction.
In July, August and September 2002, we issued an aggregate of 3,000,000
shares of our common stock upon the exercise of outstanding options by a
consultant at a price of $0.01 per share. The gross proceeds of such transaction
were $30,000.
In July 2002, we issued 575,980 shares of common stock upon the exercise
of outstanding options by an unrelated consultant at a price of $0.01 per share.
The gross proceeds of such transaction were approximately $6,000.
In June 2002, we issued 900,000 shares of common stock to two unrelated
consultants as payment for consulting services to be performed from June 2002
through June 2003. There were no cash proceeds to us in these transactions.
In June 2002, we issued 10,000 shares of common stock to an unrelated
vendor as an interest payment on past-due accounts payable. There were no cash
proceeds to us in these transactions.
In May 2002, we issued an aggregate of 200 shares of our common stock upon
the exercise of outstanding options by an employee at a price of $0.12 per
share. The gross proceeds of such transaction were $24.
During April 2002, NeoMedia repriced 7.4 million of its common stock
options held by employees, consultants and advisors for a period of six months.
During the term of the option repricing program, participating holders are
entitled to exercise subject options at an exercise price per share equal to the
greater of (1) $0.12 or (2) 50% of the last sale price of shares of Common Stock
on the OTCBB, on the trading date immediately preceding the date of exercise.
Shortly after the announcement of the repricing program, the market price for
the Company's common stock fell below $0.12, and has not closed above $0.12
since. As a result, no options were exercised under the terms of the program and
NeoMedia did not recognize any expense relating to the repricing program during
the nine months ended September 30, 2002 due to immaterial effect on the
financial statements.
In April 2002, we issued an aggregate of 140,775 shares of our common
stock upon the exercise of outstanding warrants by Charles W. Fritz, its
Chairman and Chief Executive Officer, at a price of $0.12 per share. Mr. Fritz
subsequently sold the shares into the market. The gross proceeds of such
transaction were approximately $17,000. In accordance with Section 16(b), all
proceeds from the sales were retained by us.
In April 2002, we issued an aggregate of 1,962,255 shares of our common
stock upon the exercise of outstanding options by two unrelated parties at a
price of $0.12 per share. The gross proceeds of such transaction were
approximately $235,000.
In April 2002, we issued an aggregate of 40,000 shares of our common stock
upon the exercise of outstanding options by James J. Keil, an outside director.
Mr. Keil purchased 25,000 shares at an exercise price of $0.135 and 15,000
shares at $0.20. The gross proceeds of such transaction were approximately
$6,000.
During March 2002, NeoMedia repriced 1.2 million of its common stock
warrants for a period of six months. During the term of the warrant repricing
program, participating holders are entitled to exercise qualified warrants at an
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exercise price per share equal to the greater of (1) $0.12 or (2) 50% of the
last sale price of shares of Common Stock on the OTCBB, on the trading date
immediately preceding the date of exercise. Approximately 370,000 warrants were
exercised in connection with the program, and NeoMedia recognized approximately
$38,000 in expense relating to the repricing during the nine months ended
September 30, 2002.
In March 2002, we issued an aggregate of 228,675 shares of our common
stock upon the exercise of outstanding warrants by an unrelated party at a price
of $0.12 per share. The gross proceeds of such transaction were approximately
$27,000.
In February 2002, we issued 19,000,000 shares of our common stock at a
price of $0.17 per share to five individuals and two institutional unrelated
parties. The shares were issued in exchange for limited recourse promissory
notes maturing at the earlier of i.) 90 days from the date of issuance, or ii.)
30 days from the date of registration of the shares. The gross proceeds of such
transaction will be approximately $3,040,000 upon maturity of the notes, as a
purchase price of $0.01 per share, or $190,000 in aggregate, was paid in cash.
During August 2002, the notes matured without payment, and we subsequently
cancelled the 19 million shares issued in connection with such notes. We have
accrued a liability in the third quarter of $190,000 relating to the par value
paid in connection with the issuance of the shares.
In January 2002, we issued 452,489 shares of common stock to About.com,
Inc. The shares were issued upon conversion of 452,489 shares of Series A
Convertible Preferred Stock issued to About.com, Inc. as payment for advertising
expenses incurred during 2001. This issuance was made pursuant to Section
3(a)(9) of the Act.
In January 2002, NeoMedia issued 55,000 shares of its common stock at a
price of $0.13 per share to an individual unrelated party. Cash proceeds to
NeoMedia were $7,150.
In January 2002, we issued 1,646,987 shares of common stock to two
unrelated vendors as settlement of past-due accounts payable and future payments
under equipment lease agreements. There were no cash proceeds to us in these
transactions.
In September 2001, we issued 150,000 options to buy shares of common stock
at a price of $0.20 per share for consulting services.
In July 2001, we issued an aggregate of 11,300 shares of our common stock
upon the exercise of outstanding warrants at a price of $2.00 per share. The
gross proceeds of such transaction were $23,000. The warrants were originally
issued to one unrelated party for professional services provided to us.
In June 2001, we issued warrants to purchase 404,900 shares of common
stock with an exercise price of $2.09 for consulting services.
In June 2001, we issued an aggregate of 4,100 shares of our common stock
upon the exercise of outstanding warrants at a price of $2.00 per share. The+
gross proceeds of such transaction were $8,000. The warrants were originally
issued to one unrelated party for professional services provided to us.
In May 2001, we issued an aggregate of 320,050 shares of our common stock
upon the exercise of outstanding warrants at a price of $2.00 per share. The
gross proceeds of such transaction were $641,000. The warrants were originally
issued to one related party in exchange for forgiveness of debt and one
unrelated party for professional services provided to us.
In April 2001, we issued warrants to purchase 50,000 shares of common
stock at a price of $0.01 per share to an outside institution for services
performed.
In March and April 2001, we issued 316,500 shares of our common stock at a
price of $3.40 per share to four foreign institutional unrelated parties. The
gross proceeds of such transaction were approximately $1,076,000. In connection
with the sale, we issued as a commission 50,000 warrants to purchase shares of
our common stock at an exercise price of $3.56 per share to a foreign
individual.
In March 2001, we issued 18,000 shares of our common stock at a price of
$3.41 per share to a foreign institutional unrelated party. The gross proceeds
of such transaction were $61,000.
II-3
In March 2001, we issued 156,250 shares of our common stock at a price of
$3.20 per share to a foreign institutional unrelated party. The gross proceeds
of such transaction were $500,000.
In March 2001, we issued 170,000 shares of our common stock issuable upon
the exercise of outstanding warrants held by a foreign institutional unrelated
party, originally issued in connection with the transaction described in
paragraph 4, above. The gross proceeds of such transaction were approximately
$362,000.
In October 2000, we issued warrants to purchase 80,000 shares of common
stock at a price of $4.13 per share for consulting services.
In October 2000, we issued warrants to purchase 1,400,000 shares of common
stock at a price of $6.00 per share to Digital:Convergence Corporation as
consideration for a 10-year intellectual property license agreement.
In March 2000, we issued an aggregate of 1,000,000 shares of our common
stock at a price of $7.50 per share to 20 foreign individuals and one foreign
institutional unrelated party. The gross proceeds of such transaction were
approximately $7,500,000. In connection with the sale, we issued as a commission
125,000 warrants to purchase shares of our common stock at an exercise price of
$7.50 per share, 125,000 warrants to purchase shares of our common stock at an
exercise price of $15.00 per share, and 100,000 warrants to purchase shares of
our common stock at an exercise price of $7.20 per share to the institutional
investor and an independent consultant.
In March 2000, we issued 187,500 shares of our common stock upon the
exercise of outstanding warrants at a price of $7.38 per share. The gross
proceeds of such transaction were approximately $1,383,000. The warrants were
originally issued as payment for professional services provided to us.
In February 2000, we issued 39,535 shares of our common stock at a price
of $6.88 per share to one individual and one institutional unrelated party. In
connection with the sale, we also issued 2,500 warrants with an exercise price
of $12.74 and 1,454 warrants with an exercise price of $9.56. The gross proceeds
of such transaction were approximately $272,000.
In February 2000, we issued 50,000 shares of our common stock at a price
of $6.00 per share to an institutional unrelated party. In connection with the
sale, we also issued 2,982 warrants with an exercise price of $10.06. The gross
proceeds of such transaction were approximately $300,000.
In February 2000, we issued 37,500 shares of our common stock upon the
exercise of outstanding warrants at a price of $2.00 per share, originally
issued in connection with the transaction described above in March 2002. The
gross proceeds of such transaction were approximately $75,000.
In January 2000, we issued an aggregate of 301,368 shares of our common
stock at a price of $3.75 per share to 14 unrelated parties, 3 of which were
institutions and 11 of which were individuals, of which two were foreign. In
connection with the sale, we also issued an aggregate of 12,570 warrants with an
exercise price of $7.19, 5,400 warrants with an exercise price of $6.44, and
12,167 warrants with an exercise price of $7.37. The gross proceeds of such
transaction were approximately $1,130,000. In connection with the sale, we
issued as commissions 9,502 shares of its common stock valued at $7.09 per
share.
In December 1999, we issued options to purchase 150,000 shares of common
stock at a price of $0.20 per share for consulting services.
In November 1999, we issued an aggregate of 143,334 shares of our common
stock at a price of $3.75 per share to two individual and two institutional
unrelated parties. In connection with the sale, we also issued an aggregate of
5,067 warrants with an exercise price of $5.50, 1,267 warrants with an exercise
price of $4.75, 5,333 warrants with an exercise price of $4.67, and 2,667
warrants with an exercise price of $5.84. The gross proceeds of such transaction
were approximately $538,000. In connection with the sale, we paid commissions of
approximately $35,000.
In October 1999, we issued 15,000 shares of our common stock at a price of
$4.38 per share to an individual unrelated party. In connection with the sale,
we also issued 1,500 warrants with an exercise price of $4.38. The gross
proceeds of such transaction were approximately $66,000.
In September 1999, we issued an aggregate of 210,000 shares of our common
stock at a price of $7.00 per share to one foreign individual and two foreign
institutional unrelated parties. The gross proceeds of such transaction were
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approximately $1,470,000. In connection with the sale, we issued as a commission
105,000 warrants to purchase shares of our common stock at an exercise price of
$6.00 per share to a foreign institutional investor.
In September 1999, we issued an aggregate of 275,231 shares of our common
stock at a price of $5.75 per share to two individual and three institutional
unrelated parties. In connection with the sale, we also issued an aggregate of
27,523 warrants with an exercise price of $6.75. The gross proceeds of such
transaction were approximately $1,583,000. In connection with the sale, we paid
commissions of $30,000 cash, and also issued 11,172 shares of its common stock
valued at $6.19 per share and 10,000 warrants to purchase shares of our common
stock at an exercise price of $6.19 per share.
In June 1999, we issued 250,000 shares of our common stock at a price of
$4.00 per share to A.T. Cross Company, an unrelated party. In connection with
the sale, we also issued 100,000 warrants with an exercise price of $7.00. The
gross proceeds of such transaction were approximately $1,000,000.
In May 1999, we issued an aggregate of 65,000 shares of our common stock
at a price of $4.75 per share to two individual unrelated parties. In connection
with the sale, we also issued an aggregate of 6,500 warrants with an exercise
price of $5.00. The gross proceeds of such transaction were approximately
$309,000. In connection with the sale, we paid commissions of $3,375 cash plus
3,250 warrants to purchase shares of our common stock at an exercise price of
$5.00 per share.
In April 1999, we issued an aggregate of 1,000,000 shares of our common
stock at a price of $3.45 per share to two foreign individual unrelated parties
and four institutional unrelated parties, three of which were foreign. The gross
proceeds of such transaction were approximately $3,450,000. In connection with
the sale, we issued as a commission 175,000 warrants to purchase shares of our
common stock at an exercise price of $3.45 per share to a foreign institutional
unrelated party.
In April 1999, we issued warrants to purchase 50,000 shares of common
stock at a price of $0.01 per share to an outside institution for services
performed.
In February 1999, we issued 250,000 shares of our common stock at a price
of $4.00 per share to A.T. Cross Company, an unrelated party. In connection with
the sale, we also issued 100,000 warrants with an exercise price of $5.00. The
gross proceeds of such transaction were $1,000,000.
In January and February, 1999, we issued an aggregate of 145,000 shares of
our common stock at a price of $3.50 per share to six unrelated parties, two of
which were foreign institutions, two of which were foreign individuals, and two
of which were domestic individuals. In connection with the sale, we also issued
an aggregate of 3,000 warrants with an exercise price of $3.50. The gross
proceeds of such transaction were approximately $507,500. In connection with the
sale, we also issued as a commission 280,000 warrants to purchase shares of our
common stock at an exercise price of $2.13 per share to five of the purchasers.
In January 1999, we issued 42,857 shares of our common stock at a price of
$3.50 per share to an individual related party. In connection with the sale, we
also issued 4,286 warrants with an exercise price of $3.50. The gross proceeds
of such transaction were approximately $150,000.
In January 1999, we issued 82,372 shares of our common stock to an
individual related party at a price of $3.04 per share. In connection with the
sale, we also issued 8,237 warrants with an exercise price of $3.04. The gross
proceeds of such transaction were approximately $250,000.
In January 1999, we issued warrants to purchase 230,000 shares of common
stock at a price of $2.13 per share to an outside consultant for services
performed.
In November 1998, we borrowed $500,000, in two separate notes from
unrelated third parties. These notes were due in November, 1999 with an interest
rate of 20%. One $250,000 note was extended until January 6, 2000, and the other
was extended until February 25, 2000. These notes were secured by 375,000 shares
of our common stock by placing them in an escrow account. These shares were
considered issued but not outstanding for 1999. As part of obtaining the
financing, 37,500 stock warrants, exercisable at $2.00 per share, were issued to
the lender. These warrants were exercised in February 2000. During 2000, both
notes were repaid and the 375,000 shares securing the notes have been released
from escrow and retired by us.
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We relied upon the exemption provided in Section 4(2) of the Securities
Act and/or Rule 506 thereunder, which cover "transactions by an issuer not
involving any public offering," to issue securities discussed above without
registration under the Securities Act of 1933. We made a determination in each
case that the person to whom the securities were issued did not need the
protection that registration would afford. The certificates representing the
securities issued displayed a restrictive legend to prevent transfer except in
compliance with applicable laws, and our transfer agent was instructed not to
permit transfers unless directed to do so by us, after approval by our legal
counsel. We believe that the investors to whom securities were issued had such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of the prospective investment. We also believe
that the investors had access to the same type of information as would be
contained in a registration statement.
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EXHIBITS
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
3.1 Articles of Incorporation of Dev-Tech Incorporated by reference to Exhibit
Associates, Inc. and amendment thereto 3.1 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.2 Bylaws of DevSys, Inc. Incorporated by reference to Exhibit
3.2 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.3 Restated Certificate of Incorporation of Incorporated by reference to Exhibit
DevSys, Inc. 3.3 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.4 By-laws of DevSys, Inc. Incorporated by reference to Exhibit
3.4 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.5 Articles of Merger and Agreement and Plan of Incorporated by reference to Exhibit
Merger of DevSys, Inc and Dev-Tech Associates, 3.5 to Registrant's Registration
Inc. Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.6 Certificate of Merger of Dev-Tech Associates, Incorporated by reference to Exhibit
Inc. into DevSys, Inc. 3.6 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.7 Articles of Incorporation of Dev-Tech Incorporated by reference to Exhibit
Migration, Inc. and amendment thereto 3.7 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.8 By-laws of Dev-Tech Migration, Inc. Incorporated by reference to Exhibit
3.8 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.9 Restated Certificate of Incorporation of DevSys Incorporated by reference to Exhibit
Migration, Inc. 3.9 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.10 Form of By-laws of DevSys Migration, Inc. Incorporated by reference to Exhibit
3.10 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
II-7
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
3.11 Form of Agreement and Plan of Merger of Incorporated by reference to Exhibit
Dev-Tech Migration, Inc. into DevSys Migration, 3.11 to Registrant's Registration
Inc. Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.12 Form of Certificate of Merger of Dev-Tech Incorporated by reference to Exhibit
Migration, Inc. into DevSys Migration, Inc. 3.12 to Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.13 Certificate of Amendment to Certificate of Incorporated by reference to Exhibit
Incorporation of DevSys, Inc. changing its name 3.13 to Registrant's Registration
to NeoMedia Technologies, Inc. Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.14 Form of Certificate of Amendment to Certificate Incorporated by reference to Exhibit
of Incorporation of NeoMedia Technologies, Inc. 3.14 to Registrant's Registration
authorizing a reverse stock split Statement No. 333-5534 as filed with
the SEC on November 25, 1996
3.15 Form of Certificate of Amendment to Restated Incorporated by reference to Exhibit
Certificate of Incorporation of NeoMedia 3.5 to Registrant's Annual Report as
Technologies, Inc. increasing authorized filed with the SEC on November 2,
capital and creating preferred stock 2001
4.1 Form of Certificate for Common Stock of DevSys, Incorporated by reference to Exhibit
Inc. 4.1 to the Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
4.2 Form of Joseph Charles' Warrant Agreement Incorporated by reference to Exhibit
4.2 to the Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
4.3 Form of Private Placement Financing Converted Incorporated by reference to Exhibit
Securities Registration Rights Agreement 4.4 to the Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
4.4 Form of 10% Unsecured Subordinate Convertible Incorporated by reference to Exhibit
Promissory Note 4.5 to the Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
4.5 Form of Principal Stockholder's Warrant Incorporated by reference to Exhibit
4.6 to the Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
4.6 Form of Placement Agent's Registration Rights Incorporated by reference to Exhibit
Agreement 4.7 to the Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
II-8
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
4.7 Form of Placement Agent's Warrant for the Incorporated by reference to Exhibit
Purchase of Shares of Common Stock and Warrants 4.8 to the Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
4.8 Form of Warrant Agreement and Warrant Incorporated by reference to Exhibit
4.9 to the Registrant's Registration
Statement No. 333-5534 as filed with
the SEC on November 25, 1996
4.9 NeoMedia Technologies, Inc. 1998 Stock Option Incorporated by reference to
Plan Appendix A to the Registrant's Form
14A as filed with the SEC on
February 18, 1998
4.10 Form of Warrant to Charles W. Fritz Incorporated by reference to Exhibit
4.10 to the Registrant's
Registration Statement on Form
10-KSB as filed with the SEC on
March 31, 1998
4.11 Form of Warrant to Dominick & Dominick, Incorporated by reference to Exhibit
Incorporated 4.11 to the Registrant's Annual
Report on Form 10-KSB as filed with
the SEC on March 31, 1998
4.12 Form of Warrant to Compass Capital LLC Incorporated by reference to Exhibit
4.12 to the Registrant's Annual
Report on Form 10-KSB as filed with
the SEC on March 31, 1998
4.13 Form of Warrant to Thornhill Capital, LLC Incorporated by reference to Exhibit
4.13 to the Registrant's Annual
Report on Form 10-KSB as filed with
the SEC on March 31, 1998
4.14 Form of Warrant to Southeast Research Partners, Incorporated by reference to Exhibit
Inc. 4.14 to the Registrant's Annual
Report on Form 10-KSB as filed with
the SEC on March 31, 1998
4.15 Form of Warrant to Joseph Charles & Associates, Incorporated by reference to Exhibit
Inc. 4.15 to the Registrant's Annual
Report on Form 10-KSB as filed with
the SEC on March 31, 1998
5.1 Opinion re: Legality *
10.1 Form of "Lock Up" Agreement to be entered into Incorporated by reference to Exhibit
by NeoMedia and its Officers, Directors, and 10.1 to the Registrant's
Shareholders Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.2 Form of Nonsolicitation and Confidentiality Incorporated by reference to Exhibit
Agreement 10.2 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.3 Employment Agreement, dated May 1, 1996 between Incorporated by reference to Exhibit
Dev-Tech Associates, Inc. and Charles W. Fritz 10.3 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
II-9
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
10.4 Employment Agreement, dated April 1, 1996 Incorporated by reference to Exhibit
between Dev-Tech Associates, Inc. and Robert T. 10.4 to the Registrant's
Durst, Jr. Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.5 Employment Agreement, dated May 1, 1996, Incorporated by reference to Exhibit
between Dev-Tech Associates, Inc. and Charles 10.5 to the Registrant's
T. Jensen Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.6 Lease Agreement dated September 1, 1994 for 112 Incorporated by reference to Exhibit
South Tryon Street, Charlotte, North Carolina 10.6 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.7 Lease dated August 29, 1995 for 280 Shuman Incorporated by reference to Exhibit
Boulevard, Naperville, Illinois 10.8 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.8 Promissory Note, dated as of December 31, 1994, Incorporated by reference to Exhibit
in the principal amount of $413,000 from 10.9 to the Registrant's
Dev-Tech Associates, Inc. payable to William E. Registration Statement No. 333-5534
Fritz as filed with the SEC on November
25, 1996
10.9 Promissory Note, dated as of December 31, 1994, Incorporated by reference to Exhibit
in the principal amount of $75,000 from 10.10 to the Registrant's
Dev-Tech Associates, Inc. payable to Dev-Mark, Registration Statement No. 333-5534
Inc. as filed with the SEC on November
25, 1996
10.11 Promissory Note, dated as of December 31, 1994, Incorporated by reference to Exhibit
in the principal amount of $90,000 from 10.12 to the Registrant's
Dev-Tech Migration, Inc. payable to William E. Registration Statement No. 333-5534
Fritz as filed with the SEC on November
25, 1996
10.12 Promissory Note, dated as of December 31, 1994, Incorporated by reference to Exhibit
in the principal amount of $10,000 from 10.13 to the Registrant's
Dev-Tech Migration, Inc. payable to Charles W. Registration Statement No. 333-5534
Fritz as filed with the SEC on November
25, 1996
10.13 Demand Promissory Note, dated as of December 9, Incorporated by reference to Exhibit
1994, in the principal amount of $500,000 from 10.14 to the Registrant's
Dev-Tech Migration, Inc. payable to Dev-Tech Registration Statement No. 333-5534
Associates, Inc. as filed with the SEC on November
25, 1996
10.14 Promissory Note, dated as of December 28, 1995, Incorporated by reference to Exhibit
in the principal amount of $450,000 from 10.15 to the Registrant's
Dev-Tech Migration, Inc. payable to Charles W. Registration Statement No. 333-5534
Fritz as filed with the SEC on November
25, 1996
10.15 Promissory Note, dated as of January 2, 1996, Incorporated by reference to Exhibit
in the principal amount of $360,000 from 10.16 to the Registrant's
Dev-Tech Associates, Inc. to Dev-Tech Registration Statement No. 333-5534
Migration, Inc. as filed with the SEC on November
25, 1996
II-10
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
10.16 Promissory Note, dated as of January 2, 1996, Incorporated by reference to Exhibit
in the principal amount of $472,000 from 10.17 to the Registrant's
William E. Fritz to Dev-Tech Associates, Inc. Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.17 Promissory Note, dated as of January 2, 1996, Incorporated by reference to Exhibit
in the principal amount of $750,000 from 10.18 to the Registrant's
Dev-Tech Migration, Inc. to Charles W. Fritz Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.18 Promissory Note, dated as of December 31, 1994, Incorporated by reference to Exhibit
in the principal amount of $46,748 from 10.19 to the Registrant's
Dev-Tech Migration, Inc. to Brandon Edenfield Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.19 Promissory Note, dated as of June 19, 1995, in Incorporated by reference to Exhibit
the principal amount of $20,000 from Dev-Tech 10.20 to the Registrant's
Migration, Inc. to Brandon Edenfield Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.20 Security Agreement, dated as of December 9 Incorporated by reference to Exhibit
1994, between Dev-Tech Associates, Inc. and 10.21 to the Registrant's
Dev-Tech Migration, Inc Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.21 Agreement for Wholesale Financing (Security Incorporated by reference to Exhibit
Agreement), dated October 20, 1992, to IBM 10.35 to the Registrant's
Credit Corporation from Dev-Tech Associates, Registration Statement No. 333-5534
Inc. as filed with the SEC on November
25, 1996
10.22 Guaranty from Gen-Tech, Inc. to IBM Credit Incorporated by reference to Exhibit
Corporation 10.36 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.23 Guaranty from Dev-Mark, Inc. to IBM Credit Incorporated by reference to Exhibit
Corporation 10.37 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.24 Amendment to Agreement for Wholesale Financing Incorporated by reference to Exhibit
and Addendum to Agreement for Wholesale 10.38 to the Registrant's
Financing Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.25 Assignment Agreement, dated September 15, 1994, Incorporated by reference to Exhibit
from Dev-Tech Associates, Inc. to IBM Credit 10.39 to the Registrant's
Corporation Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.26 Guaranty dated October 20, 1992 to IBM Credit Incorporated by reference to Exhibit
Corporation from Charles W. Fritz 10.40 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
II-11
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
10.27 Collateralized Guaranty, dated August 16, 1994, Incorporated by reference to Exhibit
to IBM Credit Corporation from Charles W. 10.41 to the Registrant's
Fritz, as Guarantor Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.28 Collateralized Guaranty, dated August 16, 1994, Incorporated by reference to Exhibit
to IBM Credit Corporation from Dev-Mark, Inc. 10.42 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.29 Dev-Tech Associates, Inc. Annual Incentive Plan Incorporated by reference to Exhibit
for Management 10.43 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.30 Dev-Tech Associates, Inc. 1996 Stock Option Plan Incorporated by reference to Exhibit
10.44 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.31 First Amendment and Restatement of Dev-Tech Incorporated by reference to Exhibit
Associates, Inc. 1996 Stock Option Plan 10.45 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.32 Form of Stock Option Agreement - Dev-Tech Incorporated by reference to Exhibit
Associates, Inc. 10.46 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.33 Dev-Tech Migration, Inc. 1996 Stock Option Plan Incorporated by reference to Exhibit
10.47 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.34 First Amendment and Restatement of Dev-Tech Incorporated by reference to Exhibit
Migration, Inc. 10.48 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.35 Form of Stock Option Agreement - Dev-Tech Incorporated by reference to Exhibit
Migration, Inc. 10.49 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.36 Dev-Tech Associates, Inc. 401(k) Plan and Incorporated by reference to Exhibit
amendments 10.50 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.37 Engagement Letter, dated March 13, 1995, with Incorporated by reference to Exhibit
Compass Capital, Inc. and Amendments thereto 10.51 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
II-12
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
10.38 Mutual General Release and Stock Purchase Incorporated by reference to Exhibit
Agreement with the Estate of Thomas Ruberry 10.52 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.39 Form of "Lock-Up" Agreement with Bridge Incorporated by reference to Exhibit
Financing Selling Stockholders and Form of 10.53 to the Registrant's
Addendum to Subscription Agreement Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.40 Forms of Agreements Not to Sell Incorporated by reference to Exhibit
10.58 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.41 Letter of Intent dated October 11, 1996 between Incorporated by reference to Exhibit
NeoMedia Technologies, Inc. and E-Stamp 10.59 to the Registrant's
Corporation Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.42 First Amendment and Restatement of NeoMedia Incorporated by reference to Exhibit
Technologies, Inc. 1996 Stock Option Plan 10.60 to the Registrant's
Registration Statement No. 333-5534
as filed with the SEC on November
25, 1996
10.43 Agreement of Lease, dated November 27, 1996, Incorporated by reference to Exhibit
between First Union National Bank of Florida 10.43 to the Registrant's Annual
and NeoMedia Technologies, Inc. Report on Form 10-KSB as filed with
the SEC on March 27, 1997
10.44 Sublease Agreement between NeoMedia Incorporated by reference to Exhibit
Technologies, Inc. and Lancaster Annuity 10.44 to the Registrant's Annual
Services Company dated November 8, 1996 Report on Form 10-KSB as filed with
the SEC on March 27, 1997
10.45 Agreement for Sale of Assets between Basic Incorporated by reference to Exhibit
Developments, Inc. and Meja Sistemas C.A. and 10.45 to the Registrant's Annual
NeoMedia Technologies, dated February 12, 1997 Report on Form 10-KSB as filed with
the SEC on March 27, 1997
10.46 Master Lease between William E. Fritz and Incorporated by reference to Exhibit
NeoMedia Technologies, Inc., dated November 6, 10.46 to the Registrant's Annual
1996 Report on Form 10-KSB as filed with
the SEC on March 27, 1997
10.47 Agreement for Wholesale Financing, dated Incorporated by reference to Exhibit
February 20, 1997, between IBM Credit 10.47 to the Registrant's Annual
Corporation and NeoMedia Technologies, Inc. Report on Form 10-KSB as filed with
the SEC on March 27, 1997
10.48 Collateralized Guaranty, dated February 20, Incorporated by reference to Exhibit
1997, between IBM Credit Corporation and 10.48 to the Registrant's Annual
NeoMedia Technologies, Inc. Report on Form 10-KSB as filed with
the SEC on March 27, 1997
10.49 Lease by and between American National Bank and Incorporated by reference to Exhibit
Trust Company of Chicago and NeoMedia 10.50 to the Registrant's Quarterly
Technologies, Inc., February 25, 1997 Report on Form 10-QSB as filed with
the SEC on March 31, 1997
II-13
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
10.50 Letter Agreement by and between Dominick & Incorporated by reference to Exhibit
Dominick, Incorporated and NeoMedia 10.51 to the Registrant's Quarterly
Technologies, Inc. dated March 20, 1997 Report on Form 10-QSB as filed with
the SEC on June 30, 1997
10.51 Stock Purchase Agreement dated August 30, 1997 Incorporated by reference to Exhibit
by and between NeoMedia Technologies, Inc. and 99.1 to the Registrant's Current
George Luntz and Gerald L. Willis Report on Form 8-K as filed with the
SEC on September 25, 1997
10.52 Registration Rights Agreement dated September Incorporated by reference to Exhibit
25, 1997 by and between NeoMedia Technologies, 99.2 to the Registrant's Current
Inc., Gerald L. Willis and George G. Luntz Report on Form 8-K as filed with the
SEC on September 25, 1997
10.53 Consulting Agreement dated August 30, 1997 by Incorporated by reference to Exhibit
and between NeoMedia Technologies, Inc. and 99.3 to the Registrant's Current
George Luntz Report on Form 8-K as filed with the
SEC on September 25, 1997
10.54 Employment Agreement dated August 30, 1997 by Incorporated by reference to Exhibit
and between NeoMedia Technologies, Inc. and 99.4 to the Registrant's Current
George Luntz Report on Form 8-K as filed with the
SEC on September 25, 1997
10.55 Termination of Collaterized Guaranty between Incorporated by reference to Exhibit
IBM Credit Corporation, Gen-Tech, Inc. and 10.49 to the Registrant's Annual
Dev-Mark, Inc., dated February 5, 1997 Report on Form 10-KSB as filed with
the SEC on March 27, 1997
10.56 Purchase Agreement dated December 31, 1998, by Incorporated by reference to Exhibit
and between NeoMedia Technologies, Inc. and 10.30 to the Registrant's Annual
Solar Communications, Inc. Report on Form 10-KSB as filed with
the SEC on April 15, 1999
10.57 NeoMedia Technologies, Inc. 1998 Stock Option Incorporated by reference to
Plan Appendix A of the Registrant's Form
14A as filed with the SEC on
February 18, 1998
10.58 Amendment to NeoMedia Technologies 1998 Stock Incorporated by reference to Form
Option Plan 14A as filed with the SEC on July 2,
1999
10.59 Employment Agreement dated August 2, 1999 Incorporated by reference to Exhibit
between NeoMedia Technologies, Inc. and William 10.32 to the Registrant's Annual
Goins Report on Form 10-KSB as filed with
the SEC on March 30, 2000
10.60 Licensing Agreement between Digital Convergence Incorporated by reference to Exhibit
Corporation and NeoMedia Technologies, Inc. 10.1 to the Registrant's Quarterly
Report on Form 10-QSB as filed with
the SEC on October 30, 2000
10.61 Sale and Purchase Agreement between Qode.com, Incorporated by reference to Exhibit
Inc. and NeoMedia Technologies, Inc. 10.48 to the Registrant's Current
Report on Form 8-K as filed with the
SEC on March 15, 2001
10.62 Warrant repricing letter dated March 19, 2002 Incorporated by reference to Exhibit
1.2 to the Registrant's Current
Report on Form 8-K as filed with the
SEC on April 2, 2002
10.63 Option repricing letter dated April 3, 2002 Incorporated by reference to Exhibit
1.2 to the Registrant's Current
Report on Form 8-K as filed with the
SEC on April 15, 2002
II-14
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
10.64 Intellectual Property licensing agreement Incorporated by reference to Exhibit
between NeoMedia and A.T. Cross Company 10.18 to the Registrant's Form S-1/A
as filed with the SEC on April 24,
2002
10.65 Intellectual Property licensing agreement Incorporated by reference to Exhibit
between NeoMedia and Symbol Technologies, Inc. 10.19 to the Registrant's Form S-1/A
as filed with the SEC on April 24,
2002
10.66 Sponsorship and Advertising Agreement between Incorporated by reference to Exhibit
NeoMedia and About.com, Inc. 10.20 to the Registrant's Form S-1/A
as filed with the SEC on April 24,
2002
10.67 Letter of Intent regarding proposed strategic Incorporated by reference to Exhibit
transaction between NeoMedia and AirClic, Inc. 10.21 to the Registrant's Form S-1/A
as filed with the SEC on April 24,
2002
10.68 Form of Promissory Note issued to AirClic, Inc. Incorporated by reference to Exhibit
10.22 to the Registrant's Form S-1/A
as filed with the SEC on April 24,
2002
10.69 Form of Limited Recourse Promissory Note issued Incorporated by reference to Exhibit
in exchange for 19 Million Shares of Common 10.23 to the Registrant's Form S-1/A
Stock as filed with the SEC on April 24,
2002
10.70 Nasdaq Staff Determination Letter with respect Incorporated by reference to Exhibit
to de-listing of NeoMedia securities from the 10.24 to the Registrant's Form S-1/A
Nasdaq SmallCap market as filed with the SEC on April 24,
2002
10.71 Revised warrant repricing letter dated April 3, Incorporated by reference to Exhibit
2002 10.25 to the Registrant's Form S-1/A
as filed with the SEC on April 24,
2002
10.72 RESERVED
10.73 License Agreement, dated October 18, 2000, Incorporated by reference to Exhibit
between Digital Convergence Corporation and 10.1 to the Registrants Form 10-QSB
NeoMedia as filed on October 30, 2000
10.74 Nasdaq Staff delisting notification letter Incorporated by reference to Exhibit
dated May 16, 2002 10.18 to the Registrant's Quarterly
Report on Form 10-Q as filed with
the SEC on August 14, 2002
10.75 Settlement Agreement relating to wrongful Incorporated by reference to Exhibit
termination lawsuit brought by former 10.19 to the Registrant's Form 10-Q
president and Chief Operating Officer as filed with the SEC on August 14,
2002
10.76 Mutual settlement agreement by and between Incorporated by reference to Exhibit
NeoMedia Technologies and 2150 Western Court 10.20 to the Registrants Form 10-Q
Company, LLC as filed on November 14, 2002
10.77 Mutual settlement agreement by and between Incorporated by reference to Exhibit
NeoMedia Technologies and Ripfire, Inc. 10.21 to the Registrants Form 10-Q
as filed on November 14, 2002
II-15
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
10.78 Mutual settlement agreement by and between Incorporated by reference to Exhibit
NeoMedia Technologies and Wachovia Bank, N.A. 10.22 to the Registrants Form 10-Q
as filed on November 14, 2002
10.79 Mutual settlement agreement by and between Incorporated by reference to Exhibit
NeoMedia Technologies and Marianne LePera, 10.23 to the Registrants Form 10-Q
NeoMedia Technologies' former General Counsel as filed on November 14, 2002
10.80 Equity Line of Credit Agreement, Provided herewith
dated February 11, 2003, between NeoMedia
Technologies and Cornell Capital Partners LP
10.81 Sponsorship and Advertising Agreement, dated Incorporated by reference to Exhibit
May 23, 2001, between About.com and NeoMedia 23.7 to the Registrants Form S-1/A
as filed on November 16, 2001
10.82 Promissory Note dated December 2, 2002 between Incorporated by reference to Exhibit
Michael Kesselbrenner and NeoMedia 99.1 of the Registrant's Form 8-K as
filed with the SEC on December 12,
2002.
10.83 Pledge Agreement dated December 2, 2002, Incorporated by reference to Exhibit
between Michael Kesselbrenner and NeoMedia 99.2 of the Registrant's Form 8-K as
filed with the SEC on December 12,
2002.
10.84 Form of Placement Agent Agreement, dated *
November 2002, between NeoMedia Technologies
and Westrock Advisors, Inc.
10.85 Form of Escrow Agreement, dated November 2002, *
between NeoMedia Technologies and Cornell
Capital Partners
10.86 Form of Registration Rights Agreement, dated *
November 2002, between NeoMedia Technologies
and Cornell Capital Partners
10.87 Promissory Note, dated February 23, 2001, *
between Digital Convergence Corporation and
NeoMedia
10.88 Termination Agreement, dated August 21, 2001, *
between About.com and NeoMedia
21.0 Subsidiaries Incorporated by reference to Exhibit
21 of the Registrant's Annual Report
on Form 10-K as filed on April 18, 2001.
23.1 Consent of Stonefield Josephson, Inc. Provided herewith
23.2 Consent of Ernst & Young, LLP Provided herewith
23.3 Consent of Kirkpatrick & Lockhart, LLP Incorporated by reference to Exhibit
5.1 of this filing
23.4 Notice regarding consent of Arthur Andersen LLP Provided herewith
-----------------------
* Previously filed as an exhibit to Form S-1 filed on February 12, 2003.
II-16
II-17
UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Sections 10(a)(3) of
the Securities Act of 1933 (the "Act");
(ii) 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) Include any additional or changed material information
on the plan of distribution;
(2) That, for the purpose of determining any liability under the
Act, 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 bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions, or otherwise, the small business
issuer 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 small business issuer of
expenses incurred or paid by a director, officer or controlling person of the
small business issuer 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 small business issuer 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.
II-18
SIGNATURES
In accordance with 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-1 and authorized this registration
statement to be signed on our behalf by the undersigned, on February 14, 2003.
NEOMEDIA TECHNOLOGIES, INC.
By: /s/ Charles T. Jensen
---------------------------------------
Charles T. Jensen
President, Chief Executive Officer,
Chief Operating Officer and Director
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 stated.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Charles T. Jensen
--------------------- President, Chief Executive Officer,
Charles T. Jensen Chief Operating Officer and Director February 14, 2003
/s/ William E. Fritz
-------------------- Director and Secretary February 14, 2003
William E. Fritz
/s/ Charles W. Fritz
-------------------- Chairman of the Board
Charles W. Fritz February 14, 2003
/s/ David A. Dodge
-------------------- Vice-President, Chief Financial
David A. Dodge Officer and Controller February 14, 2003
/s/ Hayes Barclay
-------------------- Director February 14, 2003
Hayes Barclay
/s/ James J. Keil
-------------------- Director February 14, 2003
James J. Keil
II-19