July 15, 2005
Barbara C. Jacobs
Assistant Director
United States Securities and Exchange Commission
Mail Stop 4-6
Washington, D.C. 20549
Re: NeoMedia Technologies, Inc.
Registration Statement on Form S-3
Filed May 25, 2005
File No. 333-125239
Dear Ms. Jacobs:
This letter has been prepared in response to your request for NeoMedia
Technologies, Inc. (the "Company") to respond to the staff's comments in the
letter dated June 24, 2005 with respect to the Registration Statement on Form
S-3 filed May 25, 2005 by NeoMedia Technologies, Inc.
General
COMMENT 1. We note that you have outstanding comments on your
Form S-4, file No. 333-123848. Please be advised that
these comments must be resolved before your
registration statement on Form S-3 is declared
effective.
RESPONSE: We respectfully acknowledge that the outstanding
comments on the S-4 must be resolved before the S-3
will be declared effective.
Prospectus Cover Page
COMMENT 2. Please revise to disclose your concurrent offering on
Form S-4 and to state the number of shares currently
being offered under your other prospectus.
RESPONSE: We have revised the disclosure as requested.
United States Securities And Exchange Commission
July 15, 2005
Page 2
COMMENT 3. While it appears form the disclosure throughout the
filing that you are registering 54,000,000 shares of
common stock underlying warrants issued to the
selling security holders, we note that the disclosure
at the top of your prospectus cover page indicates
you are also registering "Warrants to Purchase Shares
of Common Stock." Please confirm that you are
registering only the 54,000,000 shares of common
stock underlying such warrants and revise your cover
page accordingly or advise.
RESPONSE: We are only registering the 54,000,000 shares
underlying warrants issued to the security holders.
We have revised the disclosure.
Risk Factors
Risks Specific To This Offering, page 10
COMMENT 4. We note that as of May 9, 2005 you could issue up to
82,336,402 previously registered shares of common
stock under your Standby Equity Distribution
Agreement with Cornell Capital, and that you had also
entered into a new Standby Equity Distribution
Agreement with Cornell under which Cornell agreed to
purchase up to $100 million of your common stock over
a two-year period. In light of your equity line
arrangements with Cornell, please tell us whether
Cornell holds any market dependent securities. If so,
please provide us with information regarding the
material terms of such securities.
RESPONSE: We confirm that Cornell does not hold any market
dependent securities.
Selling Stockholders, page 15
COMMENT 5. Please note that disclosure regarding all material
transactions with a selling stockholder that took
place within the past three years must be provided to
conform to the requirements of Item 507 of Regulation
S-K. In this regard, we would expect to see
disclosure regarding the material terms of all such
transactions with the selling stockholders, including
the date, nature and value of such transactions We
would also expect to see specific disclosure
regarding the material terms of prior equity line
with Cornell and the material terms of the Warrant,
Promissory Note, Security Agreement, Placement Agent
Agreement, Escrow Agreement and Standby Equity
Distribution Agreement with Cornell. Please revise
accordingly.
United States Securities And Exchange Commission
July 15, 2005
Page 3
RESPONSE: We have revised the disclosure as requested.
COMMENT 6. As a follow-up to the comment above, please describe
in greater detail the material terms of the
transaction pursuant to which Thornhill Capital LLC
received its common stock and expand your disclosure
to explain the nature of the "financial consulting
services" provided by Thornhill.
RESPONSE: Thornhill received its warrants in consideration of
its involvement with negotiating and structuring the
$100 million SEDA with Cornell. Thornhill provides
strategic advisement and evaluation on mergers and
acquisitions, as well as financing opportunities. We
have revised the disclosure as requested.
COMMENT 7. It does not appear that Thornhill Capital is a
registered broker-dealer. Please confirm.
Additionally, if Thornhill Capital is an affiliate of
a broker-dealer, please disclose whether it received
its shares in the ordinary course of business and
whether, at the time of acquisition, it had any
understandings or arrangements with any other person,
either directly or indirectly, to distribute the
shares.
RESPONSE: We have confirmed with Thornhill that they are not a
registered broker-dealer, and are not affiliated with
a registered broker-dealer.
Information We Incorporate by Reference, page 19
COMMENT 8. Please revise this section to specifically
incorporate by reference the amended Form 10-KSB
filed on May 17, 2005. Additionally, ensure that this
section is updated to include any other filings that
are required to be incorporated by reference and are
filed prior to effectiveness. See Interpretation H.69
in the July 1997 CF Manual of Publicly Available
Telephone Interpretations.
RESPONSE: We have revised the disclosure as requested.
United States Securities And Exchange Commission
July 15, 2005
Page 4
Signatures
COMMENT 9. While we note that your Chief Executive Officer and
Chief Financial Officer have signed the registration
statement, please note that Form S-3 requires your
principal accounting officer or controller to sign,
as well. See Instruction 1 to the Signatures portion
of Form S-3. Accordingly, please ensure that your
next amendment is revised to clearly indicate who is
signing in the capacity of principal accounting
officer or controller.
RESPONSE: David A. Dodge, NeoMedia's Chief Financial Officer,
is also NeoMedia's principal accounting officer. We
have added this designation under Mr. Dodge's name on
the signature page to indicate his capacity as the
principal accounting officer.
Exhibits
COMMENT 10. Pursuant to the conversation held with Mr. Haligman
on June 20, 2005, please file the Warrants issued to
Thornhill Capital and Cornell Capital as exhibits to
this registration statement. Additionally, please
revise your exhibit index to list all agreements
between the company and either of the selling
security holders. See Item 601(b)(10)(i)(A) of
Regulation S-B. You may incorporate these agreements
by reference if they have already been publicly
filed.
RESPONSE: We have revised the exhibit index and added the
appropriate exhibits.
Very truly yours,
/S/ Charles T. Jensen
Charles T. Jensen
President, Chief Executive Officer & Director