| x |
Filed
by the Registrant
|
| o |
Filed
by a Party other than the
Registrant
|
| x |
Preliminary
Proxy Statement
|
| o |
Definitive
Proxy Statement
|
| o |
Definitive
Additional Materials
|
| o |
Soliciting
Material Pursuant to Rule 14a-11(c) or Rule
14a-12
|
| o |
Confidential,
For Use of the Commission Only
|
| (as permitted by Rule 14a-6(e)(2)) |
| x |
No
fee required.
|
| o |
Fee
computed on the table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
|
(1)
|
Title
of each class of securities to which transaction
applies:
|
|
(2)
|
Aggregate
number of securities to which transaction
applies:
|
|
(3)
|
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):
|
|
(4)
|
Proposed
maximum aggregate value of
transaction:
|
|
(5)
|
Total
fee paid:
|
| o |
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.
|
|
(1)
|
Amount
previously paid:
|
|
(2)
|
Form,
Schedule or Registration Statement
No.:
|
|
(3)
|
Filing
Party:
|
|
(4)
|
Date
Filed:
|
|
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.
|
|
2.
|
To
consider such other business as may properly come before the meeting
or
any postponements or adjournments
thereof.
|
|
October
___, 2008
|
/s/
Iain McCready
|
|
|
Atlanta,
Georgia
|
Chief
Executive Officer
|
|
|
ABOUT
THE MEETING
|
1
|
|||
|
PRINCIPAL
HOLDERS OF VOTING SECURITIES
|
3
|
|||
|
PROPOSAL
- AMEND COMPANY’S CERTIFICATE OF INCORPORATION TO DECREASE PAR VALUE OF
THE COMPANY’S COMMON STOCK TO $0.0001 PER SHARE
|
5
|
|||
|
DESCRIPTION
OF SECURITIES
|
7
|
|||
|
OTHER
MATTERS TO BE ACTED UPON AT THE SPECIAL MEETING OF
STOCKHOLDERS
|
11
|
|||
|
ADDITIONAL
INFORMATION
|
11
|
|||
|
APPENDIX
A
|
1
|
| · |
“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).
|
|
Common
Stock
|
Series
C Convertible
Preferred
Stock
|
Combined
Voting
Percentage
|
||||||||||||||
|
of
Common
And
Series C
Convertible
|
||||||||||||||||
|
Name
and Address of Beneficial Owner
|
Beneficial
Ownership(1)
|
Percent
of
Class(1)
|
Beneficial
Ownership(1)
|
Percent
of
Class
(1)
|
Preferred
Stock
|
|||||||||||
|
Directors
and Named Executive Officers
|
||||||||||||||||
|
Iain
A. McCready (2)
(3)
|
6,410,256
|
*
|
-
|
*
|
*
|
|||||||||||
|
Christian
Steinborn
(2) (4)
|
2,953,697
|
*
|
-
|
*
|
*
|
|||||||||||
|
James
J. Keil
(2) (5)
|
5,000,000
|
*
|
-
|
*
|
*
|
|||||||||||
|
George
G. O'Leary (2)
(6)
|
2,633,703
|
*
|
-
|
*
|
*
|
|||||||||||
|
Michael
W. Zima (2)
(7)
|
-
|
*
|
-
|
*
|
*
|
|||||||||||
|
All
Officers and Directors as a Group (5 Persons)
(8)
|
16,997,656
|
1.3
|
%
|
-
|
*
|
*
|
||||||||||
|
Other
Beneficial Owners
|
||||||||||||||||
|
Apax
Europe IV GP Co. Limited (9)
|
87,994,468
|
6.8
|
%
|
-
|
*
|
2.7
|
%
|
|||||||||
|
Argo
Global Capital, LLC (10)
|
87,810,775
|
6.8
|
%
|
-
|
*
|
2.7
|
%
|
|||||||||
|
YA
Global Investments, L.P.
(11)
|
21,155,000
|
|
1.6%
|
|
19,307
|
|
100.0
|
%
|
60.4%
|
|
||||||
|
Total:
|
196,960,243
|
|
15.1%
|
|
19,307
|
|
100.0
|
%
|
65.9%
|
|
|
(1)
|
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.
|
|
(2)
|
Address
of the referenced individual is c/o NeoMedia Technologies, Inc.,
Two
Concourse Parkway, Suite 500, Atlanta, GA,
30328.
|
|
(3)
|
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.
|
|
(4)
|
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.
|
|
(5)
|
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.
|
|
(6)
|
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.
|
|
(7)
|
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.
|
|
(8)
|
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.
|
|
(9)
|
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.
|
|
(10)
|
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.
|
|
(11)
|
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.
|
| · |
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.
|
| · |
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.
|
| · |
Revalue
certain options and warrants outstanding to current and former officers,
employees and creditors.
|
| · |
Properly
incentivize current and future employees by issuing stock options
at
current market prices.
|
| · |
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.
|
| · |
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.
|
| · |
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.
|
| · |
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.
|
|
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
|
|||||||||
|
October
___, 2008
|
/s/
Iain McCready
|
|
|
Atlanta
Georgia
|
||
|
Chief
Executive Officer
|
||
|
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.
|
|
Please
indicate if you plant to attending this meeting:
|
Yes
|
o |
No
|
o |
|
Signature
|
Date
|
Signature
(Joint Owners)
|
Date
|
|||