SCHEDULE
14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a)
of
the Securities Exchange Act of 1934
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x
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Filed
by the Registrant
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o
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Filed
by a Party other than the
Registrant
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Check
the appropriate box:
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x
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Preliminary
Proxy Statement
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o
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Definitive
Proxy Statement
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o
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Definitive
Additional Materials
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o
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Soliciting
Material Pursuant to Rule 14a-11(c) or Rule
14a-12
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o
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Confidential,
For Use of the Commission Only
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(as permitted by
Rule 14a-6(e)(2))
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NEOMEDIA
TECHNOLOGIES, INC.
(Name
of Registrant as Specified in Its Charter)
______________________________________________________________
(Name
of Person(s) Filing Proxy Statement, if Other Than the
Registrant)
Payment
of Filing Fee (Check the appropriate box):
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o
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Fee
computed on the table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction
applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant
to
Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is
calculated and state how it was
determined):
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(4)
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Proposed
maximum aggregate value of
transaction:
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o
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule
0-11(a)(2) and identify the filing for which the offsetting fee was
paid
previously. Identify the previous filing by registration statement
number,
or the form or schedule and the date of its
filing.
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(1)
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Amount
previously paid:
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(2)
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Form,
Schedule or Registration Statement
No.:
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NEOMEDIA
TECHNOLOGIES, INC.
Dear
Stockholder:
You
are
cordially invited to attend the Special Meeting of Stockholders of NeoMedia
Technologies, Inc. (the “
Company
”).
The
special meeting will be held at the offices of the Company
at
T
wo
Concourse Parkway, Suite 500, Atlanta, Georgia 30328
on
December 10, 2008, beginning at 9:30 a.m., Eastern Standard Time
.
Your
vote
is important and I urge you to vote your shares by proxy, whether or not you
plan to attend the meeting. After you read this proxy statement, please indicate
on the proxy card the manner in which you want to have your shares voted. Then
date, sign and mail the proxy card in the postage-paid envelope that is
provided. If you sign and return your proxy card without indicating your
choices, it will be understood that you wish to have your shares voted in
accordance with the recommendations of the Company’s Board of
Directors.
We
hope
to see you at the meeting.
Sincerely,
/s/
Iain
McCready
Chief
Executive Officer
October
___, 2008
NEOMEDIA
TECHNOLOGIES, INC.
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
TO
BE HELD ON DECEMBER 10, 2008
NOTICE
IS HEREBY GIVEN
that a
Special Meeting of Stockholders (the “
Special
Meeting
”)
of
NeoMedia Technologies, Inc. (the “
Company
”)
will
be held at the offices of the Company at T
wo
Concourse Parkway, Suite 500, Atlanta, Georgia 30328
on
December 10, 2008, beginning at 9:30 a.m., Eastern Standard Time, for the
following purposes:
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1.
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To
approve an amendment to the Company’s Certificate of Incorporation to
decrease the par value of the Company’s common stock from $0.01 to
$0.0001.
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2.
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To
consider such other business as may properly come before the meeting
or
any postponements or adjournments
thereof.
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The
Board
of Directors has fixed the close of business on October 22, 2008 as the record
date for determining the stockholders entitled to notice of and to vote at
the
Special Meeting or at any adjournment thereof. A complete list of the
stockholders entitled to vote at the Special Meeting will be open for
examination by any stockholder during ordinary business hours for a period
of
ten (10) days prior to the Special Meeting at the Company’s corporate offices
located at T
wo
Concourse Parkway, Suite 500, Atlanta, Georgia 30328
and on
the Company’s website at
http://www.neom.com
.
YOUR
BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” THE
PROPOSAL.
IMPORTANT
You
are
cordially invited to attend the Special Meeting in person. In order to ensure
your representation at the meeting, however, please promptly complete, date,
sign and return the enclosed proxy in the accompanying envelope. If you should
decide to attend the Special Meeting and vote your shares in person, you may
revoke your proxy at that time.
PLEASE
NOTE THAT ATTENDANCE AT THE MEETING WILL BE LIMITED TO STOCKHOLDERS OF NEOMEDIA
TECHNOLOGIES, INC. AS OF THE RECORD DATE (OR THEIR AUTHORIZED REPRESENTATIVES)
HOLDING ADMISSION TICKETS OR OTHER EVIDENCE OF OWNERSHIP. THE ADMISSION TICKET
IS DETACHABLE FROM YOUR PROXY CARD. IF YOUR SHARES ARE HELD BY A BANK OR BROKER,
PLEASE BRING TO THE MEETING YOUR BANK OR BROKER STATEMENT EVIDENCING YOUR
BENEFICIAL OWNERSHIP OF NEOMEDIA TECHNOLOGIES, INC.’S STOCK TO GAIN ADMISSION TO
THE MEETING.
BY
ORDER OF THE BOARD OF DIRECTORS
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October
___, 2008
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/s/
Iain McCready
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Atlanta,
Georgia
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Chief
Executive Officer
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PROXY
STATEMENT FOR
SPECIAL
MEETING OF STOCKHOLDERS OF
NEOMEDIA
TECHNOLOGIES, INC.
TO
BE HELD ON DECEMBER 10, 2008
TABLE
OF CONTENTS
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ABOUT
THE MEETING
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1
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PRINCIPAL
HOLDERS OF VOTING SECURITIES
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3
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PROPOSAL
- AMEND COMPANY’S CERTIFICATE OF INCORPORATION TO DECREASE PAR VALUE OF
THE COMPANY’S COMMON STOCK TO $0.0001 PER SHARE
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5
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DESCRIPTION
OF SECURITIES
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7
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OTHER
MATTERS TO BE ACTED UPON AT THE SPECIAL MEETING OF
STOCKHOLDERS
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11
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ADDITIONAL
INFORMATION
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11
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APPENDIX
A
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1
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NEOMEDIA
TECHNOLOGIES, INC.
PROXY
STATEMENT
This
proxy statement contains information related to the Special Meeting of
Stockholders (the “
Special
Meeting
”)
of
NeoMedia Technologies, Inc., a Delaware corporation (the “
Company
”),
to be
held at the offices of the Company at T
wo
Concourse Parkway, Suite 500, Atlanta, Georgia 30328
on
December 10, 2008, beginning at 9:30 a.m., Eastern Standard Time, and at any
postponements or adjournments thereof, for the purposes set forth herein. This
proxy statement and the enclosed proxy are first being mailed on or about
November 3, 2008 to all stockholders entitled to vote. The Company is making
this proxy solicitation.
ABOUT
THE MEETING
What
Is The Purpose Of The Special Meeting?
At
the
Special Meeting, stockholders will act upon the matters outlined in the Notice
of Meeting on the cover page of this proxy statement, which relates to a
decrease in the par value of the Company’s common stock from $0.01 to $0.0001
per share.
Who
Is Entitled To Vote?
Only
stockholders of record on the close of business October 22, 2008 (the
“
Record
Date
”)
are
entitled to receive notice of the Special Meeting and to vote the shares of
capital stock that they held on the Record Date at the Special Meeting, or
any
postponements or adjournments of the meeting. Holders of the Company’s Series C
Preferred Stock have voting rights on an “as-converted” basis whereby, based on
current market prices, each share of Series C Convertible Preferred Stock shall
vote the equivalent to 100,000 shares of common stock and shall vote together
with holders of common stock. See the section herein entitled “Description of
Securities.”
Who
Can Attend The Special Meeting?
All
stockholders of record as of the Record Date, or their duly appointed proxies,
may attend the Special Meeting. Seating, however, is limited. Admission to
the
meeting will be on a first-come, first-serve basis. Registration will begin
at
9:00 a.m., and seating will begin at 9:15 a.m. Each stockholder may be asked
to
present valid picture identification, such as a driver’s license or passport.
Cameras, recording devices and other electronic devices will not be permitted
at
the meeting.
Please
note that if you hold your shares in “street name” (that is, through a broker or
other nominee), you will need to bring a copy of a brokerage statement
reflecting your stock ownership as of the record date and check in at the
registration desk at the meeting.
What
Constitutes A Quorum?
The
presence at the Special Meeting, in person or by proxy, of the holders of a
majority of the shares of voting capital stock outstanding on the Record Date
will constitute a quorum, permitting the meeting to conduct its business. As
of
the Record Date, the stockholders held a total of 3,230,944,960 votes, including
1,300,244,960
shares of common stock and 19,307 shares of
Series C Convertible Preferred Stock, each share of which is entitled to vote
the equivalent to 100,000 shares of common stock. As such, holders of at least
1,615,472,481 votes must be present at the meeting, in person or by proxy,
to
obtain a quorum. Proxies received but marked as abstentions and broker non-votes
will be included in the calculation of the number of shares considered to be
present at the meeting.
How
Do I Vote?
If
you
complete and properly sign the accompanying proxy card and return it to the
Company, then it will be voted as you direct. If you are a registered
stockholder and attend the meeting, then you may deliver your completed proxy
card in person or vote by ballot at the meeting. “Street name” stockholders who
wish to vote at the meeting will need to obtain a proxy form from the
institution that holds their shares.
What
If I Do Not Specify How My Shares Are To Be Voted?
If
you
submit a proxy but do not indicate any voting instructions, then your shares
will be voted in accordance with the Board’s recommendations.
Can
I Change My Vote After I Return My Proxy Card?
Yes.
Even
after you have submitted your proxy card, you may change your vote at any time
before the proxy is exercised by filing with the Corporate Secretary of the
Company either a notice of revocation or a duly executed proxy bearing a later
date. The powers of the proxy holders will be suspended if you attend the
meeting in person and so request, although attendance at the meeting will not
by
itself revoke a previously granted proxy.
What
Are The Board’s Recommendations?
Unless
you give other instructions on your proxy card, the persons named as proxy
holders on the proxy card will vote in accordance with the recommendation of
the
Board of Directors. The Board’s recommendation is set forth together with the
description of such item in this proxy statement. In summary, the Board
recommends a vote:
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“FOR”
the approval to amend the Company’s Certificate of Incorporation to
decrease the par value of the Company’s common stock from $0.01 to
$0.0001
per
share (see page 5).
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With
respect to any other matter that properly comes before the meeting, the proxy
holders will vote as recommended by the Board of Directors or, if no
recommendation is given, in their own discretion.
What
Vote Is Required To Approve Each Item?
Approval
To Amend The Company’s Certificate of Incorporation.
For the
approval to amend the Company’s Certificate of Incorporation to decrease the par
value of the Company’s common stock from $0.01 to
$0.0001
per share, the affirmative vote of the holders of
a majority of the 3,230,944,960 outstanding shares entitled to vote will be
required for approval (at least 1,615,472,481 votes). A properly executed proxy
marked “Abstain” with respect to such matter will not be voted, although it will
be counted for purposes of determining whether there is a quorum. Accordingly,
an abstention will have the effect of a negative vote.
If
you
hold your shares in “street name” through a broker or other nominee, your broker
or nominee may not be permitted to exercise voting discretion with respect
to
some of the matters to be acted upon. Thus, if you do not give your broker
or
nominee specific instructions, your shares may not be voted on those matters
and
will not be counted in determining the number of shares necessary for approval.
Shares represented by such “broker non-votes,” however, will be counted in
determining whether there is a quorum.
PRINCIPAL
HOLDERS OF VOTING SECURITIES
Security
Ownership Of Certain Beneficial Owners And Management
The
following table sets forth information about the beneficial ownership of our
common stock and preferred stock as of the Record Date (October 22, 2008),
by
(i) each person who we know is the beneficial owner of more than five
percent (5%) or more of the outstanding shares of common stock, (ii) each
of our directors or those nominated to be directors, and executive officers,
and
(iii) all of our directors and executive officers as a group.
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Common
Stock
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Series
C Convertible
Preferred
Stock
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Combined
Voting
Percentage
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of
Common
And
Series C
Convertible
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Name
and Address of Beneficial Owner
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Beneficial
Ownership
(1)
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Percent
of
Class
(1)
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Beneficial
Ownership
(1)
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Percent
of
Class
(1)
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Preferred
Stock
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Directors
and Named Executive Officers
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Iain
A. McCready
(2)
(3)
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6,410,256
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*
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-
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*
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*
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Christian
Steinborn
(2) (4)
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2,953,697
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*
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-
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*
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*
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James
J. Keil
(2) (5)
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5,000,000
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*
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-
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*
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*
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George
G. O'Leary
(2)
(6)
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2,633,703
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*
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-
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*
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*
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Michael
W. Zima
(2)
(7)
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-
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*
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-
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*
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*
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All
Officers and Directors as a Group (5 Persons)
(8)
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16,997,656
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1.3
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%
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-
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*
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*
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Other
Beneficial Owners
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Apax
Europe IV GP Co. Limited
(9)
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87,994,468
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6.8
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%
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-
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*
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2.7
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%
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Argo
Global Capital, LLC
(10)
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87,810,775
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6.8
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%
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-
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*
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2.7
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%
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YA
Global Investments, L.P.
(11)
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21,155,000
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1.6%
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19,307
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100.0
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%
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60.4%
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Total:
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196,960,243
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15.1%
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19,307
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100.0
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%
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65.9%
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*
Indicates less than 1%.
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(1)
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Applicable
percentage of ownership is based on 1,300,244,960 shares of common
stock
and 19,307 shares of Series C Convertible Preferred Stock outstanding
as
of the Record Date. Percentage ownership is determined based on shares
owned together with securities exercisable or convertible into shares
of
common stock within sixty (60) days of the Record Date for each
stockholder. Beneficial ownership is determined in accordance with
the
rules of the SEC and generally includes voting or investment power
with
respect to securities. Shares of common stock subject to securities
exercisable or convertible into shares of common stock that are currently
exercisable or exercisable within sixty (60) days of the Record Date
are
deemed to be beneficially owned by the person holding such securities
for
the purpose of computing the percentage of ownership of such person,
but
are not treated as outstanding for the purpose of computing the percentage
ownership of any other person. The common stock and Series C Convertible
Preferred Stock are the only outstanding classes of equity securities
of
the Company. Series C Convertible Preferred Stock is entitled to
vote on
an “as-converted” basis with holders of the Company’s common stock. As of
the Record Date, each share of Series C Convertible Preferred Stock
is
eligible to vote the equivalent of 100,000 shares of common stock.
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(2)
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Address
of the referenced individual is c/o NeoMedia Technologies, Inc.,
Two
Concourse Parkway, Suite 500, Atlanta, GA,
30328.
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(3)
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Iain
A. McCready is our Chief Executive Officer. Ownership includes 6,410,256
shares of common stock issuable upon exercise of stock options which
will
have vested within 60 days of October 22, 2008. The Company has issued
to
Mr. McCready options to purchase a total of 32,051,286 shares of
our
common stock, including the shares which will have vested as of October
22. 2008.
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(4)
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Christian
Steinborn is Chief Executive Officer of our wholly owned subsidiary,
Gavitec, AG. Ownership includes 1,200,000 shares of common stock
issuable
upon exercise of stock options which will have vested within 60 days
of
October 22, 2008. and 1,753,697 shares of common stock directly owned
by
Mr. Steinborn. The Company has issued to Mr. Steinborn options to
purchase
a total of 2,500,000 shares of our common stock, including the shares
which will have vested within 60 days of October 22,
2008.
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(5)
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James
J. Keil is a member of our Board of Directors. Ownership includes
2,500,000 shares of common stock issuable upon exercise of stock
options
and 2,500,000 shares owned by Mr. Keil directly.
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(6)
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George
O'Leary is a member of our Board of Directors. Ownership includes
1,022,028 shares owned by SKS Consulting of South Florida Corp, a
company
that Mr. O'Leary currently serves as President, and 340,676 shares
owned
by Mr. Jay Bonk, an employee of SKS Consulting of South Florida Corp.,
953,249 shares of common stock issuable upon exercise of stock options
and
317,750 shares of common stock issuable upon exercise of stock options
in
the name of Mr. Bonk.
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(7)
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Michael
W. Zima is our Chief Financial Officer and Corporate Secretary. The
Company has issued to Mr. Zima options to purchase a total of 5,000,000
shares of our common stock, none of which will have vested within
60 days
of October 22, 2008.
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(8)
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Includes
an aggregate of 11,381,255 options to purchase shares of common stock
which will have vested within 60 days of October 22, 2008 and 5,616,401
shares owned directly by our named executive officers and directors.
The
Company has issued options to purchase a total of 43,322,285 shares
of our
common stock, to our named officers and directors, including the
shares
which will have vested within 60 days of October 22,
2008.
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(9)
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This
information is based solely on a review of Schedule 13G filed with
the SEC
by Apax Global Europe IV GP Co. Limited. The address of Apax Global
Europe
IV GP Co. Limited is P.O. Box 63, St Peter Port, Guernsey, Channel
Islands, GY16JL.
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(10)
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This
information is based solely on a review of Schedule 13G filed with
the SEC
by Argo Global Capital, LLC. The address of Argo Global Capital,
LLC is
601 Edgewater Drive, Suite 345, Wakefield, Massachusetts
01880.
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(11)
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This
information was provided by YA Global Investments, L.P. having an
address
at 101 Hudson Street, Suite 3700, Jersey City, NJ 07302. YA Global
Investments, L.P. directly owns 21,155,000 shares of our common stock
and
19,307 shares of our Series C Convertible Preferred Stock. YA Global
Investments, L.P.’s holding of our Series C Convertible Preferred Stock
gives them the right to 1,930,700,000 votes, on an as-converted basis.
YA
Global Investments, L.P. is contractually limited to own no more
than
4.99% of our outstanding common shares at any
time.
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PROPOSAL
- AMEND COMPANY’S CERTIFICATE OF INCORPORATION TO DECREASE PAR VALUE OF THE
COMPANY’S COMMON STOCK TO $0.0001 PER SHARE
General
Information
The
Board
of Directors has unanimously voted in favor of the Company decreasing the par
value of the Company’s common stock from $0.01 to $0001 and strongly urges you
to vote in favor of this proposal. The Board believes that a decrease in the
par
value is in the best interests of the stockholders because it will provide
the
Company greater flexibility to sell and issue shares of its common stock when
desirable. State corporate laws prevent the Company from issuing shares of
its
common stock at a price per share below par. In light of the fact that the
Company’s common stock has consistently traded below $0.01 in recent months, the
Company has been unable to sell and issue shares of its common stock at current
market prices. Lowering the Company’s par to a value which is less than recent
market prices will enable the Company to do the following:
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·
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Comply
with the terms of certain conversion provisions set forth in that
certain
Certificate of Designations of Series C Convertible Preferred Stock
which
entitle holders of Series C Convertible Preferred Stock to convert
(at
certain times and subject to the terms therein) shares of Series
C
Convertible Preferred Stock into common stock at a discount to market
price.
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·
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Conduct
a registration rights offering to existing stockholders whereby the
Company may offer shares of common stock to such existing stockholders
at
a discount to the current trading price. Such an offering could generate
cash for the Company to augment and possibly accelerate the Company’s
efforts to bring products to market. Such an offering could also
partially
offset dilution experienced by legacy stockholders.
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·
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Revalue
certain options and warrants outstanding to current and former officers,
employees and creditors.
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·
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Properly
incentivize current and future employees by issuing stock options
at
current market prices.
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There
are
possible negative ramifications associated with lowering the par value of the
common stock. For example,
stockholders
could experience dilution upon the issuance of new shares as contemplated by
those activities described above. Also, the issuance of common stock at a lower
price may afford the Company added flexibility to deter a
potential
takeover of the Company that may otherwise be beneficial to stockholders by
diluting the shares held by a potential suitor or issuing shares to a
stockholder that will vote in accordance with the Board’s desires. A takeover
may be beneficial to independent stockholders because, among other reasons,
a
potential suitor may offer such stockholders a premium for their shares of
stock
compared to the then-existing market price. The Company does not have any plans
or proposals to adopt provisions or enter into agreements that may have material
anti-takeover consequences. Although there are these negative possibilities,
the
Company’s
management
and Board believe that the benefits to the Company’s stockholders outweigh the
negatives.
THIS
CHANGE WILL NOT DECREASE THE BOOK VALUE OR MARKET VALUE OF YOUR SHARES OR CHANGE
ANY OF YOUR RIGHTS AND PRIVILEGES AS A STOCKHOLDER OF THE
COMPANY.
Amendment
to the Certificate of Incorporation
If
the
amendment to our Certificate of Incorporation is adopted, an amendment to the
Certificate of Incorporation of the Company shall be filed with the Secretary
of
State of the State of Delaware so that Article IV therein reads as
follows:
“
Article
IV. Authorized Stock.
The
total
number of shares of capital stock that the Corporation is authorized to issue
is
5,025,000,000, which are divided into two (2) classes as follows: 5,000,000,000
shares of common stock, par value $0.0001 per share, and 25,000,000 shares
of
preferred stock, par value $0.01 per share.”
Vote
Required For An Increase In Authorized Shares Of Common
Stock
Approval
to amend the Company’s Certificate of Incorporation to decrease the par value of
the Company’s common stock from $0.01 to $0.0001 per share will require that the
holders of at least a majority of the outstanding shares entitled to vote
thereon vote “
FOR
”
the
proposal.
Recommendation
Of The Board Of Directors
Our
Board
of Directors unanimously recommends a vote “
FOR
”
the
approval.
DESCRIPTION
OF SECURITIES
The
following description of our capital stock and certain provisions of our
Certificate of Incorporation and Bylaws is a summary. For additional
information, please refer to our Certificate of Incorporation, as amended,
and
Bylaws.
Common
Stock
On
June 28, 2006, our stockholders voted to increase our number of shares of
authorized common stock from 1,000,000,000 to 5,000,000,000. As of October
22,
2008, 1,300,244,960 common shares were outstanding. Holders of common stock
are
entitled to one vote for each share held of record on each matter submitted
to a
vote of stockholders. Holders of the common stock do not have cumulative voting
rights, which means that the holders of more than one half of our outstanding
shares of common stock, subject to the rights of the holders of preferred stock,
can elect all of our directors, if they choose to do so. In this event, the
holders of the remaining shares of common stock would not be able to elect
any
directors. Subject to the prior rights of any class or series of preferred
stock
which may from time to time be outstanding, if any, holders of common stock
are
entitled to receive ratably, dividends when, as, and if declared by the Board
of
Directors out of funds legally available for that purpose and, upon our
liquidation, dissolution, or winding up, are entitled to share ratably in all
assets remaining after payment of liabilities and payment of accrued dividends
and liquidation preferences on the preferred stock, if any. Holders of common
stock have no preemptive rights and have no rights to convert their common
stock
into any other securities. Exclusive of the Company’s intention to initiate a
shareholder sights offering, our common stock carries no intrinsic right to
acquire additional shares and offset actual or potential dilution. In the event
we were to elect to sell additional shares of common stock to the public,
following this offering, investors in this offering would have no right to
purchase additional shares. As a result, their percentage equity interest in
us
would be diluted.
Except
as
otherwise permitted by Delaware law, and subject to the rights of the holders
of
preferred stock, all stockholder action is taken by the vote of a majority
of
the outstanding shares of common stock voted as a single class present at a
meeting of stockholders at which a quorum consisting of a majority of the
outstanding shares of common stock is present in person or proxy.
Preferred
Stock
The
Company is authorized to issue 25,000,000 shares of preferred stock, par value
$0.01 per share. The Company may issue preferred stock in one or more series
and
having the rights, privileges, and limitations, including voting rights,
conversion rights, liquidation preferences, dividend rights and preferences
and
redemption rights, as may, from time to time, be determined by the Board of
Directors. Preferred stock may be issued in the future in connection with
acquisitions, financings, or other matters, as the Board of Directors deems
appropriate. In the event that the Company determines to issue any shares of
preferred stock, a certificate of designation containing the rights, privileges,
and limitations of this series of preferred stock shall be filed with the
Secretary of State of the State of Delaware. The effect of this preferred stock
designation power is that the Board of Directors alone, subject to Federal
securities laws, applicable blue sky laws, and Delaware law, may be able to
authorize the issuance of preferred stock which could have the effect of
delaying, deferring, or preventing a change in control of the Company without
further action by its stockholders, and may adversely affect the voting and
other rights of the holders of the Company’s common stock. The issuance of
preferred stock with voting and conversion rights may also adversely affect
the
voting power of the holders of the Company’s common stock, including the loss of
voting control to others.
Series
A Preferred Stock.
During
December 1999, the Board of Directors approved a Certificate of Resolutions
Designating Rights and Preferences of preferred stock, filed with the Secretary
of State of the State of Delaware on December 20, 1999. By this approval and
filing, 200,000 shares of Series A Preferred Stock were designated. Series
A
Preferred Stock which carries the following rights:
|
·
|
The
right to receive mandatory cash dividends equal to the greater of
$0.001
per share or 100 times the amount of all dividends (cash or non-cash,
other than dividends of shares of common stock) paid to holders of
the
common stock, which dividend is payable 30 days after the conclusion
of
each calendar quarter and immediately following the declaration of
a
dividend on common stock;
|
|
·
|
One
hundred votes per each share of Series A Preferred Stock on each
matter
submitted to a vote of the Company’s
stockholders;
|
|
·
|
The
right to elect two directors at any meeting at which directors are
to be
elected, and to fill any vacancy on the Board of Directors previously
filled by a director appointed by the Series A Preferred Stock
holders;
|
|
·
|
The
right to receive an amount, in preference to the holders of common
stock,
equal to the amount per share payable to holders of common stock,
plus all
accrued and unpaid dividends, and following payment of 1/100th of
this
liquidation preference to the holders of each share of common stock,
an
additional amount per share equal to 100 times the per share amount
paid
to the holders of common stock; and
|
|
·
|
The
right to exchange each share of Series A Preferred Stock for 100
times the
consideration received per share of common stock in connection with
any
merger, consolidation, combination or other transaction in which
shares of
common stock are exchanged for or converted into cash, securities
or other
property.
|
|
·
|
The
right to be redeemed in accordance with the Company’s stockholders rights
plan.
|
While
accrued mandatory dividends are unpaid, we may not declare or pay dividends
or
distributions on, or redeem, repurchase or reacquire, shares of any class or
series of junior or parity stock.
The
Series A Preferred Stock was created in connection with the Company’s
stockholders rights plan. No shares of Series A Preferred have been issued
or
are currently outstanding.
Series
A Convertible Preferred Stock.
On
June
19, 2001, the Board of Directors approved a Certificate of Designations to
create 500,000 shares of a Class of Series A Convertible Preferred Stock for
NeoMedia Technologies, Inc., filed with the Secretary of State of the State
of
Delaware on June 20, 2001. By this approval and filing, 47,511 shares are
designated as Series A Convertible Preferred Stock and remain to be issued..
The
Company’s Series A Convertible Preferred Stock, par value $0.01 per share, has
the following rights:
|
·
|
Each
share is convertible into shares of common stock at a one-to-one
ratio,
subject to proportional adjustments in the event of stock splits
or
combinations, and dividends or distributions of shares of common
stock, at
the option of the holder; shares are subject to automatic conversion
as
determined in each agreement relating to the purchase of shares of
Series
A Convertible Preferred Stock;
|
|
·
|
Each
share is entitled to receive a liquidation preference equal to the
original purchase price of such share in the event of liquidation,
dissolution, or winding up;
|
|
·
|
Upon
merger or consolidation, or the sale, lease or other conveyance of
all or
substantially all of the Company’s assets, shares of Series A Convertible
Preferred Stock are automatically convertible into the number of
shares of
stock or other securities or property (including cash) to which the
common
stock into which it is convertible would have been entitled;
and
|
|
·
|
Each
share is entitled to one vote per share, and vote together with holders
of
common stock.
|
In
June
2001, 452,489 shares of Series A Convertible Preferred Stock were issued to
About.com, Inc. pursuant to a certain Agreement for Payment in common stock,
in
lieu of cash payment to About.com for online advertising services. On
January 2, 2002, such shares were converted into 452,489 shares of common
stock. As of the Record Date, there are no shares of Series A Convertible
Preferred Stock issued and outstanding.
Series
B Convertible Redeemable Preferred Stock.
On
January 16, 2002, the Board of Directors approved a Certificate of Designation,
Preferences, Rights and Limitations of Series B 12% Convertible Redeemable
Preferred Stock of NeoMedia Technologies, Inc., filed with the Secretary of
State of the State of Delaware on February 28, 2002. By this approval and
filing, 100,000 shares were designated as Series B 12% Convertible Redeemable
Preferred Stock. The Company’s Series B 12% Convertible Redeemable Preferred
Stock, par value $0.01 per share, has the following rights:
|
·
|
Series
B preferred shares accrue dividends at a rate of 12% per annum, or
$1.20
per share, between the date of issuance and the first anniversary
of
issuance;
|
|
·
|
Series
B preferred is redeemed to the maximum extent permitted by law (based
on
funds legally available for redemption) at a price per share of $15.00,
plus accrued dividends (a total of $16.20 per share) on the first
anniversary of issuance;
|
|
·
|
Series
B preferred receive proceeds of $12.00 per share upon the Company’s
liquidation, dissolution or winding
up;
|
|
·
|
To
the extent, not redeemed on the first anniversary of issuance, Series
B
preferred is automatically convertible into then existing general
class of
common stock on the first anniversary of issuance at a price equal
to
$16.20 divided by the greater of $0.20 and the lowest publicly-sold
share
price during the 90 day period preceding the conversion date, but
in no
event more than 19.9% of the Company’s outstanding capital stock as of the
date immediately prior to
conversion;
|
|
·
|
Upon
merger or consolidation, or the sale, lease or other conveyance of
all or
substantially all of the Company’s assets, shares of Series B preferred
are automatically convertible into the number of shares of stock
or other
securities or property (including cash) to which the common stock
into
which it is convertible would have been entitled;
and
|
|
·
|
Shares
of Series B preferred are entitled to one vote per share and vote
with
common stock, except where the proposed action would adversely affect
the
Series B preferred or where the non-waivable provisions of applicable
law
mandate that the Series B preferred vote separately, in which case
Series
B preferred vote separately as a class, with one vote per
share.
|
No
shares
of the Series B Convertible Redeemable Preferred Stock have been issued or
are
currently outstanding.
Series
C Convertible Preferred Stock.
On
February 22, 2006, the Company filed with the Secretary of State of the State
of
Delaware a Certificate of Designation of Series C Convertible Redeemable
Preferred Stock of NeoMedia Technologies, Inc. By the approval and filing,
27,000 shares were designated as Series C Convertible Preferred Stock. The
Company’s Series C Convertible Preferred Stock, par value $0.01 per share, has
the following rights:
|
·
|
Series
C Convertible Preferred Stock accrues dividends at a rate of 8% per
annum;
|
|
·
|
Series
C Convertible Preferred Stock receives proceeds of $1,000 per share
upon
the Company’s liquidation, dissolution or winding
up;
|
|
·
|
Each
share of Series C Convertible Preferred Stock shall be convertible,
at the
option of the holder, into shares of the Company’s common stock at the
lesser of (i) Fifty Cents ($0.50) or (ii) 97% of the
lowest closing bid price of the Company’s common stock for the
thirty (30) trading days immediately preceding the date of
conversion; and
|
|
·
|
At
the option of the holders, if there are outstanding shares of Series
C
Convertible Preferred Stock on February 17, 2009, each share of Series
C
Preferred Stock shall convert into shares of common stock at the
conversion price then in effect on February 17, 2009;
and
|
|
·
|
Series
C Convertible Preferred Stock has voting rights on an “as converted”
basis.
|
As
of the Record Date, 19,307 shares of Series Convertible Preferred Stock were
issued and outstanding.
We
have
no present agreements relating to or requiring the designation or issuance
of
additional shares of preferred stock.
Warrants
And Options
As
of the Record Date, we had outstanding options and warrants to purchase
132,751,010
and 1,464,470,834 shares of the Company’s
common stock, respectively, with exercise prices ranging from $0.01 to $3.45.
The number of shares issuable upon exercise and the exercise prices of the
warrants are subject to adjustment in the event of certain events such as stock
dividends, splits and combinations, capital reorganization and with respect
to
certain warrants, issuance of shares of common stock at prices below the then
exercise price of the warrants.
Warrants.
YA
Global Investments, L.P. holds 1,449,500,000 of the warrants that we
currently have outstanding. Total warrants outstanding as of October 22, 2008
are outlined in the following table:
|
Original
Issue Date
|
|
Shares
Underlying
Warrant
|
|
Original
Exercise
Price
|
|
Restated
Exercise
Price
|
|
|
|
|
|
|
|
|
|
|
|
April
15, 1999
|
|
|
175,000
|
|
$
|
3.450
|
|
|
NA
|
|
|
February
25, 2004
|
|
|
100,000
|
|
$
|
0.102
|
|
|
NA
|
|
|
March
8, 2004
|
|
|
1,500,000
|
|
$
|
0.110
|
|
$
|
0.048
|
|
|
March
8, 2004
|
|
|
2,500,000
|
|
$
|
0.110
|
|
|
NA
|
|
|
March
23, 2005
|
|
|
2,000,000
|
|
$
|
0.227
|
|
$
|
0.048
|
|
|
March
23, 2005
|
|
|
2,000.000
|
|
$
|
0.227
|
|
|
NA
|
|
|
February
14. 2006
|
|
|
2,000,000
|
|
$
|
0.328
|
|
|
NA
|
|
|
February
14, 2006
|
|
|
30,000,000
|
|
$
|
0.350
|
|
$
|
0.020
|
|
|
February
14, 2006
|
|
|
25,000,000
|
|
$
|
0.400
|
|
$
|
0.020
|
|
|
February
14, 2006
|
|
|
20,000,000
|
|
$
|
0.500
|
|
$
|
0.020
|
|
|
August
24, 2006
|
|
|
50,000,000
|
|
$
|
0.050
|
|
$
|
0.020
|
|
|
August
24. 2006
|
|
|
25,000,000
|
|
$
|
0.200
|
|
$
|
0.020
|
|
|
August
24, 2006
|
|
|
50,000,000
|
|
$
|
0.200
|
|
$
|
0.020
|
|
|
August
24, 2006
|
|
|
50,000,000
|
|
$
|
0.250
|
|
$
|
0.020
|
|
|
December
30, 2006
|
|
|
42,000,000
|
|
$
|
0.060
|
|
$
|
0.020
|
|
|
March
27, 2007
|
|
|
125,000,000
|
|
$
|
0.040
|
|
$
|
0.020
|
|
|
June
18, 2007
|
|
|
4,583,334
|
|
$
|
0.035
|
|
|
NA
|
|
|
August
24, 2007
|
|
|
75,000,000
|
|
$
|
0.020
|
|
|
NA
|
|
|
January
16, 2008
|
|
|
112,500
|
|
$
|
0.011
|
|
|
NA
|
|
|
May
16, 2008
|
|
|
7,500,000
|
|
$
|
0.018
|
|
|
NA
|
|
|
May
29, 2008
|
|
|
50,000,000
|
|
$
|
0.010
|
|
|
NA
|
|
|
July
29, 2008
|
|
|
125,000,000
|
|
$
|
0.075
|
|
|
NA
|
|
|
July
29, 2008
|
|
|
125,000,000
|
|
$
|
0.050
|
|
|
NA
|
|
|
July
29, 2008
|
|
|
100,000,000
|
|
$
|
0.050
|
|
|
NA
|
|
|
July
29, 2008
|
|
|
100,000,000
|
|
$
|
0.020
|
|
|
NA
|
|
|
October
20, 2008
|
|
|
125,000,000
|
|
$
|
0.075
|
|
|
NA
|
|
|
October
20, 2008
|
|
|
125,000,000
|
|
$
|
0.050
|
|
|
NA
|
|
|
October
20, 2008
|
|
|
100,000,000
|
|
$
|
0.040
|
|
|
NA
|
|
|
October
20, 2008
|
|
|
100,000,000
|
|
$
|
0.020
|
|
|
NA
|
|
|
|
|
|
1,464,470,834
|
|
|
|
|
|
|
|
Stock
Option Plans.
On September 24, 2003, the Company’s stockholders
approved the 2003 Stock Option Plan. Under this Plan, the Company is authorized
to grant to employees, directors, and consultants up to 150,000,000 options
to
purchase shares of common stock. Since inception of the 2003 Stock Option Plan
through the Record Date, approximately 38,000,000 options have been exercised,
89,000,000 have been forfeited and placed back into the pool of options
available for grant and 131,000,000 remained outstanding. Our named directors
and executive officers have approx 43,000,000 of our options outstanding. A
former executive officer and director, who is through attribution a 5% or more
shareholder of the Company, has 20,000,000 of our options
outstanding.
On
December 16, 2005, the Company’s stockholders approved the 2005 Stock Option
Plan. Under this plan, the Company is authorized to grant to employees,
directors, and consultants up to 60,000,000 options to purchase shares of common
stock. As of the Record Date, the Company had not registered the underlying
shares or issued any options under the 2005 Stock Option Plan.
Anti-Takeover
Effects Of Provisions Of The Certificate Of Incorporation
On
December 10, 1999, the Board of Directors adopted a stockholders rights plan
and
declared a non-taxable dividend of one right on each outstanding share of the
Company’s common stock to stockholders of record on December 10, 1999 and each
share of common stock issued prior to the rights plan trigger date. The
stockholder rights plan was adopted as an anti-takeover measure, commonly
referred to as a “poison pill.” The stockholder rights plan was designed to
enable all stockholders to receive fair and equal treatment in any proposed
takeover of the corporation and to guard against partial or two-tiered tender
offers, open market accumulations and other hostile takeover tactics to gain
control of the Company. The stockholders rights plan, which is similar to plans
adopted by many leading public companies, was not adopted in response to any
effort to acquire control of the Company at the time of adoption. Certain of
the
Company’s former directors, former officers and principal stockholders, Charles
W. Fritz, William E. Fritz and The Fritz Family Limited Partnership and their
holdings, were exempted from the triggering provisions of the Company’s “poison
pill” plan, as a result of the fact that, as of the plans adoption, their
holdings might have otherwise triggered the “poison pill”.
OTHER
MATTERS TO BE ACTED UPON
AT
THE SPECIAL MEETING OF STOCKHOLDERS
The
management of the Company knows of no other matters to be presented at the
Special Meeting. Should any matter requiring a vote of the stockholders other
than those listed in this proxy statement arise at the meeting, the persons
named in the proxy will vote the proxies in accordance with their best
judgment.
ADDITIONAL
INFORMATION
The
Company is soliciting the enclosed proxies. The cost of soliciting proxies
in
the enclosed form will be borne by the Company. Officers and regular employees
of the Company may, but without compensation other than their regular
compensation, solicit proxies by further mailing, or personal conversations,
or
by telephone, telex, facsimile or electronic means. The Company will, upon
request, reimburse brokerage firms for their reasonable expenses in forwarding
solicitation materials to the beneficial owners of stock.
|
October
___, 2008
|
/s/
Iain McCready
|
|
|
|
Atlanta
Georgia
|
|
|
|
Chief
Executive Officer
|
|
|
|
|
|
APPENDIX
A
REVOCABLE
PROXY
NEOMEDIA
TECHNOLOGIES, INC.
The
undersigned hereby appoints
IAIN
MCCREADY
and
MICHAEL
ZIMA
,
or each
of them individually, with full power of substitution, to act as proxy and
to
represent the undersigned at the December 10, 2008 Special Meeting of
Stockholders and to vote all shares of voting capital stock of
NEOMEDIA
TECHNOLOGIES, INC.
which
the undersigned is entitled to vote if personally present at said meeting to
be
held at
THE
OFFICES OF NEOMEDIA TECHNOLOGIES, INC. AT TWO CONCOURSE PARKWAY, SUITE 500,
ATLANTA, GEORGIA 30328 ON DECEMBER 10, 2008, BEGINNING AT 9:30 A.M., EASTERN
STANDARD TIME
,
and at
all postponements or adjournments thereof upon all business as may properly
come
before the meeting with all the powers the undersigned would possess if then
and
there personally present.
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF NEOMEDIA TECHNOLOGIES,
INC. THIS PROXY, WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED
HEREIN. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED IN FAVOR OF THE
PROPOSAL TO AMEND THE CERTIFICATE OF INCORPOATION OF NEOMEDIA TECHNOLOGIES,
INC.
TO REDUCE ITS PAR VALUE FROM $0.01 TO $0.0001 PER SHARE. PROXIES ARE GRANTED
THE
DISCRETION TO VOTE UPON ALL OTHER MATTERS THAT MAY PROPERLY BE BROUGHT BEFORE
THE MEETING OR ANY POSTPONEMENT OR ADJOURNMENT THEREOF.
THIS
PROXY, WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY
THE
UNDERDSIGNED. IF NO DIRECTION IS MADE, THE SHARES WILL BE VOTED “FOR” THE
PROPOSAL. SUCH PROXY ALSO DELEGATES DISCRETIONARY AUTHORITY TO VOTE WITH RESPECT
TO ANY OTHER BUSINESS THAT MAY PROPERLY COME BEFORE THE MEETING OR ANY
ADJOURNMENTS OR POSTPONEMENTS THEREOF.
(CONTINUED,
AND TO BE SIGNED ON REVERSE SIDE)
PLEASE
RETAIN THIS ADMISSION TICKET
FOR
THE
SPECIAL
MEETING OF STOCKHOLDERS OF
NEOMEDIA
TECHNOLOGIES, INC. AT THE OFFICES OF NEOMEDIA TECHNOLOGIES, INC. AT TWO
CONCOURSE PARKWAY, SUITE 500, ATLANTA, GEORGIA 30328
DECEMBER
10, 2008
9:30
A.M., EASTERN STANDARD TIME
PRESENT
THIS TICKET
TO
A NEOMEDIA TECHNOLOGIES, INC. REPRESENTATIVE
AT
THE ENTRANCE TO THE MEETING ROOM
Vote
By Mail
Mark,
sign, and date your proxy card and return it in the postage-paid envelope we
have provided or return it to NeoMedia Technologies, Inc., c/o Michael Zima,
T
wo
Concourse Parkway, Suite 500, Atlanta, Georgia 30328
.
IT
IS IMPORTANT THAT YOUR SHARES ARE REPRESENTED AT THIS MEETING, WHETHER OR NOT
YOU ATTEND THE MEETING IN PERSON. TO MAKE SURE YOUR SHARES ARE REPRESENTED,
WE
URGE YOU TO COMPLETE AND MAIL THE PROXY CARD BELOW.
IF
YOU PLAN TO ATTEND THE SPECIAL MEETING OF STOCKHOLDERS, PLEASE MARK THE
APPROPRIATE BOX ON THE PROXY CARD BELOW.
THIS
PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED
NEOMEDIA
TECHNOLOGIES, INC.
Vote
on Proposal
|
1.
|
To
approve an amendment to the Company’s Certificate of Incorporation to
decrease the par value of the Company’s common stock from $0.01 to
$0.0001.
|
|
FOR
|
o
|
AGAINST
|
o
|
ABSTAIN
|
o
|
|
2.
|
To
transact such other business as may properly come before the meeting
or
any adjournments or postponements
thereof.
|
THE
UNDERSIGNED HEREBY ACKNOWLEDGES RECEIPT OF THE NOTICE OF SPECIAL MEETING AND
PROXY STATEMENT OF THE COMPANY.
Please
sign your name exactly as it appears on your stock certificate. When signing
as
attorney-in-fact, executor, administrator, trustee or guardian, please add
your
title as such. When signing as joint tenants, all parties in the joint tenancy
must sign. If signer is a corporation, please sign in full corporate name by
duly authorized officer or officers and affix the corporate seal.
|
Please
indicate if you plant to attending this meeting:
|
Yes
|
o
|
No
|
o
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature
|
|
Date
|
|
Signature
(Joint Owners)
|
|
Date
|
|
|
|
|
|
|
|
|
NeoMedia Technologies (CE) (USOTC:NEOM)
Historical Stock Chart
From Apr 2024 to May 2024
NeoMedia Technologies (CE) (USOTC:NEOM)
Historical Stock Chart
From May 2023 to May 2024
