As filed with the Securities and Exchange Commission on
March 31, 2011May 10, 2017Registration No.
333-______333-UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C.DC 20549_________________________ FormFORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________DATARAM CORPORATION
_____________________________________________________________________________ (Exact(Exact name of registrant as specified in its charter)
New Jersey 22-1831409 _____________________________________________________________________________ (StateNevada
(State or other jurisdiction of
(I.R.S.incorporation or organization)22-1831409
(I.R.S. Employer Identification
No.) incorporation or organization) P.O. Box 7528,Number)777 Alexander Road, Suite 100
Princeton, NJ
08543 _____________________________________________________________________________ (Address of principal executive offices) (Zip Code)08540(609) 799-0071
_____________________________________________________________________________ (Registrant's(Address, including zip code, and telephone number, including area
code) Agent For Service MARK E. MADDOCKScode, of registrant’s principal executive offices)David A. Moylan
Chief Executive Officer
Dataram Corporation
186 Princeton-Hightstown777 Alexander Road,
West Windsor, New Jersey 08550Suite 100Princeton, NJ 08540
(609) 799-0071
With Copies To: THOMAS J. BITAR, ESQ. Dillon, Bitar & Luther, L.L.C. 200 Park Avenue, Suite 301 Florham Park, NJ 07932 (973) 539-3100(Name, address, including zip code, and telephone number, including area code, of agent for service)
WITH COPIES TO:
Harvey Kesner, Esq.
Sichenzia Ross Ference Kesner LLP
61 Broadway, 32nd Floor
New York, NY 10006
(212) 930-9700
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration
statement becomes effective.statement.If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [ ]
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. [x]box: [X]If this
formForm 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
formForm 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 this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [ ]
LargeIndicate by check mark whether the registrant is a large accelerated filer,
[ ] Acceleratedan accelerated filer,[ ] Non-accelerateda non-accelerated filer,[ ] Smallera smaller reporting company,[x]or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer [ ] | Accelerated filer [ ] |
| Non-accelerated filer [ ] (Do not check if a smaller reporting company) | Smaller reporting company [X] |
| Emerging growth company [ ] |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. [ ]
CALCULATION OF REGISTRATION FEE
Title of Each Class of Proposed Maximum Amount of
Securities to be Registered Aggregate Registration Fee
Offering Price
Offering:
Common Stock,
$1.00 par value per share (2) -
Debt Securities (2) -
Warrants (2) -
Units (2) -
Total Offering $20,000,000.00 $2,322.00(3)
(1) There are being registered hereunder such indeterminate number of
shares of common stock, such indeterminate principal amount of debt
securities, such indeterminate
| Title of each class of securities to be registered | Amount to be registered/proposed maximum offering price per unit/proposed maximum aggregate offering price | Amount of registration fee | ||||||
| Common Stock | (1) | (2) | ||||||
| Preferred Stock | (1) | (2) | ||||||
| Debt Securities | (1 | ) | ||||||
| Warrants | (1 | ) | ||||||
| Units | (1 | ) | ||||||
| Total | $ | 20,000,000 | (3) | $ | 2,318 | (4) | ||
| (1) | An unspecified number of securities or aggregate principal amount, as applicable, is being registered as may from time to time be offered at unspecified prices. | |
| (2) | Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan. | |
| (3) | Estimated solely for the purpose of calculating the registration fee. No separate consideration will be received for shares of common stock or preferred stock that are issued upon conversion of debt securities or preferred stock or upon exercise of warrants | |
| (4) | The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
The proposed maximum
initial offering price per unit will be determined, from time to time, by
the registrant in connection with the issuance by the registrant of the
securities registered hereunder. The securities registered also include such
indeterminate number of shares of common stock and amount of debt securities
as may be issued upon conversion of or exchange for debt securities that
provide for conversion or exchange, upon exercise of warrants or pursuant to
the anti-dilution provisions of any such securities. In addition, pursuant
to Rule 416 under the Securities Act of 1933, as amended, the shares being
registered hereunder include such indeterminate number of shares of common
stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar
transactions.
(2) The proposed maximum aggregate offering price per class of
security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered
hereunder and is not specified as to each class of security pursuant to
General Instruction II(D) of Form S-3 under the Securities Act of 1933, as
amended.
(3) Calculated pursuant to Rule 457(o) under the Securities Act of
1933, as amended, based on the proposed maximum aggregate offering price.
The registrantRegistrant hereby amends this registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until wethe Registrant shall further file a further amendment which specifically states that this registration statementRegistration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statementRegistration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We willmay not sell thethese securities described in this documentor accept an offer to buy these securities until the
registration statement filed with the Securities and Exchange Commission is declareddeclares our registration statement effective. This prospectus is not an offer to sell these securities nor are weand is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED March 31, 2011
Dataram Corporation
$20,000,000.00
MAY 10, 2017
PROSPECTUS
DATARAM CORPORATION
$20,000,000
Common Stock
Preferred Stock
Debt Securities
Common Stock
Warrants
Units
This prospectus provides you with a general description of debt and
equity securities that we
We may offer and sell, from time to time in one or more seriesofferings, any combination of common stock, preferred stock, debt securities or issuances. warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually or as units comprised of one or more of the other securities, having an aggregate initial offering price not exceeding $20,000,000.
This prospectus provides a general description of the securities we may offer.Each time we sell a particular class or series of securities, we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus supplement that will contain specificand any related free writing prospectus may also add, update or change information about the terms
of that sale and may add to or update the informationcontained in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. You should read carefully read this prospectus, and the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference herein or deemed to be
incorporated in this prospectustherein before you invest in any of our securities
offered hereby. securities.
This prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered securities.
Our common stock is presently listed on The NASDAQ Capital Market under the symbol “DRAM.” On May 8, 2017 the last reported sale price of our common stock was $4.79.The applicable prospectus supplement will contain information, where applicable, as to any other listing on The NASDAQ Capital Market or any securities market or other exchange of the securities, if any, covered by the prospectus supplement.
Dataram Corporation
These securities may offer and sell securitiesbe sold directly by us, through dealers or agents designated from time to purchaserstime, to or through one or more underwriters, dealers and/or agentsthrough a combination of these methods on a continuous or delayed basis. For additional information onSee “PLAN OF DISTRIBUTION” in this prospectus. We may also describe the methodsplan of sale, you should refer to the section entitled "Plandistribution for any particular offering of Distribution."our securities in a prospectus supplement. If any agents, underwriters or agentsdealers are involved in the sale of any securities within respect toof which this prospectus is being delivered, we will disclose their names and the namesnature of such
underwriters or agents and any applicable discounts or commissions and over-
allotment options will be set forthour arrangements with them in thea prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from any such sale will also be set forthincluded in a prospectus supplement.
Our
The aggregate market value of our outstanding common stock is listedheld by non-affiliates pursuant to General Instruction I.B.6 of Form S-3 was approximately $5,338,202 based on The Nasdaq Capital Market under the
symbol "DRAM." On March 28, 2011, the1,204,667 shares of common stock outstanding, of which 1,114,447 shares were held by non-affiliates, and a last reported sale price on The NASDAQ Capital Market of our$4.79 per share on May 8, 2017. We have not sold any securities pursuant to General Instruction I.B.6. of Form S-3 during the prior 12 calendar month period that ends on and includes the date hereof.
On May 3, 2017, the Company filed a certificate of amendment to its Articles of Incorporation with the Nevada Secretary of State in order to effectuate a reverse stock split of the Company’s issued and outstanding common stock, par value $0.001 per share on a one (1) for four (4) basis, effective on May 8, 2017. The Nasdaq Capital Market was $2.19.
Company’s issued and outstanding common shares and per share numbers are retroactively restated.
Investing in our common stocksecurities involves risk.various risks. See "Risk Factors"“RISK FACTORS” on page 6.
You should carefully review5, in addition to the risks and uncertainties described under the
heading "Risk Factors"risk factors contained in the applicable prospectus supplement and
under similar headings in the documents that are incorporated by reference
in this prospectus.
supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed upon the accuracyadequacy or adequacyaccuracy of this prospectus.prospectus or any accompanying prospectus supplement. Any representation to the contrary is a criminal offense.
The date of this prospectus is March 31, 2011
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you
with additional information or information different from that contained in
this prospectus. The information contained or incorporated by reference in
this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of
securities offered by this prospectus. Our business, financial condition,
results of operations and prospects may have changed since that date.
In this prospectus, the "Company", "Dataram", "we", "us", and "our" refer to
Dataram Corporation and its subsidiaries. Our fiscal year ends on April 30
of each calendar year. For example, fiscal year 2010 refers to the year
ended April 30, 2010. Dataram is a registered trademark of Dataram
Corporation. This prospectus contains product names, trade names and
trademarks of Dataram and other organizations.
May 10, 2017.
TABLE OF CONTENTS
Page
About this Prospectus............................................. 3
Special Note Regarding Forward-Looking Statements ................ 4
Business Summary ................................................. 5
Risk Factors...................................................... 6
Use of Proceeds .................................................. 9
Dilution of Existing Common Stock ................................ 9
Description of Common Stock ...................................... 9
Description of Debt Securities ................................... 10
Description of Warrants .......................................... 19
Description of Units ............................................. 20
Plan of Distribution ............................................. 21
Anti-takeover Effects of Provisions of Our Restated Certificate of
Incorporation and By-Laws ...................................... 23
New Jersey Shareholders Protection Act ........................... 24
Legal Matters .................................................... 24
Experts .......................................................... 25
Where You Can Find More Information .............................. 25
Information Incorporated by Reference ............................ 25
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the "SEC" or "Commission"“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), using a "shelf"“shelf” registration process. Under this shelf registration process, we may sell:
Debt securities;
Common stock;
Warrants; and
Unitsfrom time to time sell common stock, preferred stock, debt securities or warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either separatelyindividually or inas units comprised of one or more of the other securities, in one or more offerings. Thisofferings up to a total dollar amount of $20,000,000. We have provided to you in this prospectus
provides you with a general description of those securities. We will offer
ourthe securities in amounts, at prices and on terms to be determined at the
time we offer such securities.may offer. Each time we sell securities under this shelf registration, we will, to the extent required by law, provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus. Before purchasing any
securities, you should carefully readTo the extent there is a conflict between the information contained in this prospectus and the applicableprospectus supplement or any related free writing prospectus, you should rely on the information in the prospectus supplement or the related free writing prospectus; provided that if any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus or any prospectus supplement or any related free writing prospectus — the statement in the document having the later date modifies or supersedes the earlier statement.
We have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus, any accompanying prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or an accompanying prospectus supplement, or any related free writing prospectus that we may authorize to be provided to you. This prospectus, the accompanying prospectus supplement and any applicablerelated free writing prospectus, together
withif any, do not constitute an offer to sell or the additional information described undersolicitation of an offer to buy any securities other than the headings "Where You Can
Find More Information" and "Information Incorporated by Reference." Under
no circumstances should the deliveryregistered securities to you ofwhich they relate, nor do this prospectus, the accompanying prospectus supplement or any offeringrelated free writing prospectus, if any, constitute an offer to sell or sales made pursuantthe solicitation of an offer to this prospectus createbuy securities in any implicationjurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct as ofon any time
afterdate subsequent to the date of this prospectus.
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus and the informationdocument incorporated by reference include
forward-looking statements, within(as our business, financial condition, results of operations and prospects may have changed since that date), even though this prospectus, any applicable prospectus supplement or any related free writing prospectus is delivered or securities are sold on a later date.
As permitted by the meaning of Section 27Arules and regulations of the Securities ActSEC, the registration statement, of 1933, or the Securities Act, and Section 21E of the
Securities Exchange Act of 1934, or the Exchange Act. These statements are
based on management's current expectations or predictions of future results
or events. We make these forward-looking statements in reliance on the safe
harbor provisions provided under the Private Securities Litigation Reform
Act of 1995.
All statements, other than statements of historical fact, includedwhich this prospectus forms a part, includes additional information not contained in this prospectus and information incorporated by reference which relate to
performance, development or activities that we expect or anticipate will orprospectus. You may happen inread the future, are forward-looking statements. Other forward-
looking statements may be identified by the use of forward-looking words
such as "believe," "expect," "may," "might," "will," "should," "seek,"
"could," "approximately," "intend," "plan," "estimate," or "anticipate" or
the negative of those words or other similar expressions.
Forward-looking statements involve inherent risks and uncertainties and are
based on numerous assumptions. They are not guarantees of future
performance. A number of important factors could cause actual results to
differ materially from those in the forward-looking statement. Some factors
include:
- our ability to obtain financing or sell assets and achieve levels
of revenue and cost reductions that are adequate to support our
capital and operating requirements;
- our ability to remain competitive and a leader in our industries
and our future growth, our industries,registration statement and the economy in general;
- our ability to achieve structural and material cost reductions
without impacting product development or manufacturing execution;
- expected improvements in our product and technology development
programs;
- our ability to successfully develop, introduce, market and qualify
new products;
- our ability to identify and acquire suitable acquisition targets
and difficulties in integrating recent or future acquisitions into our
operations;
- other risks and uncertainties described in our filingsreports we file with the SEC such as: cancellations, rescheduling,at the SEC’s web site or delays in product shipments;
manufacturing capacity constraints; lengthy sales and qualification
cycles; difficulties inat the production process; changes in
semiconductor industry growth; increased competition; delays in
developing and commercializing new products; and other factors.
Forward-looking statements contained herein are made only as ofSEC’s offices described below under the date
made, and we do not undertake any obligation to update them to reflect
events or circumstances after the date ofheading “WHERE YOU CAN FIND MORE INFORMATION.”
Company References
In this prospectus, “Dataram,” “the Company,” “we,” “us,” and “our” refer to reflectDataram Corporation, a Nevada corporation and all subsidiaries, unless the occurrencecontext otherwise requires.
Since 1967, we have been an independent manufacturer of unanticipated events.
Business Summary
We are a developer, manufacturer and marketer of large capacity memory products primarily used in highand provider of performance network servers and
workstations.solutions. We provide customized memory solutions for original equipment manufacturers (OEMs) and compatible memory for leading brands including Cisco, Dell, Fujitsu, HP, IBM, Lenovo and Sun Microsystems. We also manufactureOracle as well as a line of memory products for Intel and AMD motherboard based servers. We have developedmanufacture our memory in-house to meet three key criteria — quality, compatibility and are continuingselection — and test our memory for performance and OEM compatibility as part of the developmentproduction process. With memory designed for over 50,000 systems and with products that range from energy efficient DDR4 modules to legacy SDR offerings, we offer one of a line of high performance storage caching
products (our "XcelaSAN" product line). XcelaSAN is a unique intelligent
Storage Area Network ("SAN") optimization solution designed to deliver
substantive application performance improvement to applications such as
Oracle, SQL and VMware. XcelaSAN augments existing storage systems by
transparently applying intelligent caching algorithms that serve the most active block-level data from high-speed storage, creating an intelligent,
virtual solid state SAN, allowing organizations to dramatically increasecomplete portfolios in the performance of their business-critical applications without the costly
hardware upgrades or over-provisioning of storage typically found in current
solutions for increased performance.industry. We have madeare a CMTL Premier Participant and are continuing to make
significant investments in research and development in XcelaSAN.ISO 9001:2008 certified. Our memory products are sold worldwide to OEMs,fully compliant with JEDEC Specifications. Our customers include an international network of distributors, value-
added resellers, retailers, OEM customers and end-users. We haveend users.
On June 13, 2016, we entered into an Agreement and Plan of Merger, as amended and restated on June 29, 2016, September 14, 2016 and November 28, 2016 for the acquisition of U.S. Gold Corp., a manufacturing facilityNevada corporation, and subsidiaries (“U.S. Gold”). U.S. Gold is an exploration stage company that owns certain mining leases and other mineral rights comprising the Copper King gold and copper development project located in the United StatesSilver Crown Ming District of southeast Wyoming (the “Copper King Project”) and mining claims related to a gold development project in Eureka County, Nevada (the “Keystone Project”). The closing of the merger is subject to customary closing conditions.
Following the merger, Dataram will operate as a single entity with sales officestwo reporting businesses – a junior mining business and a memory business.
Company Information
We were incorporated in the United States, Europe and Japan.
We are an independent memory manufacturer specializing in high capacity
memory and competes with several other large independent memory
manufacturers as well asState of New Jersey on May 19, 1967. On January 6, 2016, we changed our state of incorporation from the OEMs mentioned above. The primary raw material
used in producing memory boards is dynamic random access memory (DRAM)
chips. The purchase costState of DRAMs isNew Jersey to the largest single componentState of the
total cost of a finished memory board. Consequently, average selling prices
for computer memory boards are significantly dependent on the pricing and
availability of DRAM chips.
On March 31, 2009, we acquired certain assets of Micro Memory Bank,
Inc. (MMB), a privately held corporation. MMB is a manufacturer of legacy to
advanced solutions in laptop, desktop and server memory products. The
acquisition expanded our memory product offerings and routes to market.Nevada. Our principal executive office is located at 186777 Alexander Road, Suite 100, Princeton, Road
(Route 571), West Windsor, New Jersey 08550,08540, our telephone number is (609) 799-0071 our fax is (609) 799-6734 and our website address is located at
http://www.dataram.com. Proxy Statements, Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, and all
amendments thereto, are available on this website free of charge. For
specific information about our company, our products or the markets we
serve, please visit our website at http://www.dataram.com. The information contained inon, or linked toaccessible through, our website is not part of this prospectus.
prospectus or any prospectus supplement.
An investment in our securities involves risks.a high degree of risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable to an investment in our securities. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should carefully read andalso consider the risk factorsrisks, uncertainties and other disclosures relating toassumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended April 30, 2016 and any investmentupdates described in securities issued by Dataram Corporation set forth below,our Quarterly Reports on Form 10-Q as well as those describedthe Risk Factors related to our pending acquisition of U.S. Gold Corp., set forth in the SEC reportsCurrent Report on Form 8-K, filed on June 13, 2016, all of which are incorporated herein by reference, herein, as
updatedand may be amended, supplemented or superseded from time to time by annual, quarterly and other reports and documents we file with the SEC afterin the date of thisfuture and any prospectus and that are also incorporated by
reference herein. Before making an investment decision, you should
carefully consider those risks as well as other information we include or
incorporate by reference in this prospectus and the applicable prospectus
supplement.supplement related to a particular offering. The risks and uncertainties we have described are not the only ones facing our company.we face. Additional risks and uncertainties not presently known to us or that we currently considerdeem immaterial may also affect our business operations. To the extent a particular offering implicates
additional risk, we will include a discussionThe occurrence of thoseany of these known or unknown risks might cause you to lose all or part of your investment in the applicableoffered securities.
This prospectus supplement.
WE MAY NEED TO OBTAIN ADDITIONAL WORKING CAPITAL FOR CONTINUED RESEARCH
AND DEVELOPMENT. The developmentand any accompanying prospectus supplement, including the documents that we incorporate by reference, contains forward-looking statements within the meaning of Section 27A of the XcelaSAN product line has requiredSecurities Act and will continue to require substantial capital investment. We believe
hat we have obtained sufficient financing for the continued developmentSection 21E of the products through fiscal 2011. However,Securities Exchange Act of 1934, as amended (the “Exchange Act”). Such forward-looking statements include those that express plans, anticipation, intent, contingency, goals, targets or future development and/or otherwise are not statements of historical fact. These forward-looking statements are based on our current expectations and projections about future events and they are subject to risks and uncertainties known and unknown that could cause actual results and developments to differ materially from those expressed or implied in such financing may not be
sufficient for our purposesstatements.
In some cases, you can identify forward-looking statements by terminology, such as “expects,” “anticipates,” “intends,” “estimates,” “plans,” “believes,” “seeks,” “may,” “should,” “could” or the negative of such terms or other similar expressions. Accordingly, these statements involve estimates, assumptions and additional sources of financing may not be
available if needed. If we requireuncertainties that could cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this prospectus.
You should read this prospectus and are unable to raise additional
funds, we may need to delay, scale-back or eliminate some or all of our
researchany accompanying prospectus supplement and product development programs and/or license third parties to
develop and commercialize products or technologiesthe documents that we would otherwise
seekreference herein and therein and have filed as exhibits to developthe registration statement, of which this prospectus is part, completely and commercialize ourselves.
WE MAY HAVE TO SUBSTANTIALLY INCREASE OUR WORKING CAPITAL REQUIREMENTS
IN THE EVENT OF DRAM ALLOCATIONS. Overwith the past 20 years, availabilityunderstanding that our actual future results may be materially different from what we expect. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as of DRAMs has swung backthe date on the front cover of this prospectus or such prospectus supplement only. Because the risk factors referred to above, as well as the risk factors referred to above and forthincorporated herein by reference, could cause actual results or outcomes to differ materially from oversupply to shortage. In timesthose expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements. Further, any forward-looking statement speaks only as of shortage, we have been forced to invest substantial working capital
resources in building and maintaining inventory. At such times we have
bought DRAMs in excess of our customers' needs in order to ensure future
allocations from DRAM manufacturers. In the event of a shortage, we may not
be able to obtain sufficient DRAMs to meet customers' needs in the short
term,date on which it is made, and we may haveundertake no obligation to invest substantial working capital resources in
orderupdate any forward-looking statement to meet long-term customer needs.
WE COULD SUFFER LOSSES IF DRAM PRICES DECLINE SUBSTANTIALLY. We are at
times requiredreflect events or circumstances after the date on which the statement is made or to maintain substantial inventories during periodsreflect the occurrence of shortage and allocation. Thereafter, during periods of increasing
availability of DRAMs and rapidly declining prices, we have been forced to
write down inventory. There can be no assurance that we will not suffer
losses in the future based upon high inventories and declining DRAM prices.
OUR PRODUCTS MAY VIOLATE OTHERS' PATENTS. Certain of our products
are designed to be used with proprietary computer systems built by
various OEM manufacturers. We often have to comply with the OEM's
proprietary designs which may be patented, now or at some time in the
future. OEMs have, at times, claimed that we have violated their patent
rights by adapting our products to meet the requirements of
their systems. It is our policy to, in unclear cases, either obtain an
opinion of patent counsel prior to marketing, or obtain a license from the
patent holder. We are presently licensed by Sun Microsystems and Silicon
Graphics to sell memory products for certain of their products. However,
there can be no assurance that product designs will not be created in the
future which will, in fact, be patented and which patent holders will
require the payment of substantial royalties as a condition for our
continued presence in the segment of the market covered by the patent or
they may not give us a license. Nor can there be any assurance that our
existing products do not violate one or more existing patents.
WE MAY LOSE AN IMPORTANT CUSTOMER. During fiscal 2010, the largest ten
customers accounted for approximately 34% of our revenues and one
customer accounted for 11% of our revenues. There can be no assurance that
one or more of these customers will not cease or materially decrease their
business with us in the future and that our financial performance will not
be adversely affected thereby.
SALES DIRECTLY TO OEM'S CAN MAKE OUR REVENUES, EARNINGS, BACKLOG AND
INVENTORY LEVELS UNEVEN. Revenue and earnings from OEM sales may become
uneven as order sizes are typically large and often a completed order cannot
be shipped until released by the OEM, e.g., to meet a "just in time"
inventory requirement. This may occur at or near the end of an accounting
period. In such case, revenues and earnings could decline for the period
and inventory and backlog could increase.
WE FACE COMPETITION FROM OEMs. In the compatibles market we sell our
products at a lower price than OEMs. Customers will often pay some premium
for the "name brand" product when buying additional memory and OEMs seek to
exploit this tendency by having a high profit margin on memory products.
However, individual OEMs can change their policy and price memory products
competitively. While we believe that with our manufacturing efficiency and
low overhead we still would be able to compete favorably with OEMs, in such
an event profit margins and earnings would be adversely affected. Also,
OEMs could choose to use "free memory" as a promotional device in which case
our ability to compete would be severely impaired.
WE FACE COMPETITION FROM DRAM MANUFACTURERS. DRAM manufacturers not
only sell their product as discreet devices, but also as finished memory
modules. They primarily sell these modules directly to OEMs and large
distributors and as such compete with us. There can be no assurance that
DRAM manufacturers will not expand their market and customer base, and our
profit margins and earnings could be adversely affected.
THE MARKET FOR OUR PRODUCTS MAY NARROW OVER TIME. The principal market
for our memory products consists of the manufacturers, buyers and owners of
workstations and enterprise servers, classes of machines lying between large
mainframe computers and personal computers. Personal computers are
increasing in their power and sophistication and, as a result, are now
filling some of the computational needs traditionally filled by
workstations. The competition for the supply of after-market memory
products in the PC industry is very competitive and to the extent we compete
in this market we can be expected to have lower profit margins. There can
be no assurance that this trend will not continue in the future, and that
our financial performance will not be adversely affected.
A PORTION OF OUR OPERATIONS IS DESIGNED TO MEET THE NEEDS OF THE VERY
COMPETITIVE INTEL AND AMD PROCESSOR-BASED MOTHERBOARD MARKET. In addition
to selling server memory systems, we develop, manufacture and market a
variety of memory products for motherboards that are Intel or AMD processor
based. Many of these products are sold to OEMs and incorporated into
computers and other equipment. This is an intensely competitive market with
high volumes but lower margins.
WE MAY MAKE UNPROFITABLE ACQUISITIONS. We actively seek to acquire
complementary products and related intellectual property. The
possibility exists that an acquisition will be made at some time in the
future. Uncertainty surrounds all acquisitions and it is possible that a
particular acquisition may not result in a benefit to shareholders,
particularly in the short-term. In addition, there can be no assurance that
the recently acquired business of MMB will be, or remain, a profitable
operating unit of ours or that expected savings from having a larger
consolidated business operation will occur.
THE INVESTMENTS WE MAKE IN RESEARCH AND DEVELOPMENT MAY NOT LEAD TO
PROFITABLE NEW PRODUCTS. We have implemented a strategy to introduce
new and complementary products into our offerings portfolio, and expect to
spend substantial sums of money on research and development of such possible
new products. These research and development expenditures may not result in
the identification or exploitation of any products that can be profitably
sold by us.
WE MAY BE ADVERSELY AFFECTED BY EXCHANGE RATE FLUCTUATIONS. A portion
of our accounts receivable and a portion of our expenses are denominated in
foreign currencies. These proportions change over time. As a result, our
revenues and expenses may be adversely affected,unanticipated events. New factors emerge from time to time, by
changesand it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in the relationshipany forward-looking statements. We qualify all of the dollar to various foreign currencies on
foreign exchange markets. We do not currently hedgeinformation presented in this prospectus and any accompanying prospectus supplement, and particularly our foreign currency
risks.
WE MAY INCUR INTANGIBLE ASSET AND GOODWILL IMPAIRMENT CHARGES WHICH
COULD HARM OUR PROFITABILITY. We periodically review the carrying values of
our intangible assets and goodwill to determine whether such carrying values
exceed the fair market value. Our goodwill is subject to an annual review
for goodwill impairment. If impairment testing indicates that the carrying
value exceeds its fair value, the intangible assets or goodwill is deemed
impaired. Accordingly, an impairment charge would be recognized in the
period identified, which could reduce our profitability.
OUR STOCK HAS LIMITED LIQUIDITY. Although our stock is publicly
traded, it has been observed that this market is "thin." As a result, the
common stock may trade at a discount to what would be its value if the stock
enjoyed greater liquidity.
WE ARE SUBJECT TO THE NEW JERSEY SHAREHOLDERS PROTECTION ACT. This
statute has the effect of prohibiting any "business combination" - a very
broadly defined term - with any "interested shareholder" unless the
transaction is approvedforward-looking statements, by the Board of Directors at a time before the
interested shareholder had acquired a 10% ownership interest. This
prohibition of "business combinations" is for five years after the
shareholder became an "interested shareholder" and continues after that time
period subject to certain exceptions. A practical consequence of this
statute is that a hostile acquisition of our company is unlikely to occur
and hostile transactions which might be of benefit to our shareholders are
unlikely to occur.
these cautionary statements.
USE OF PROCEEDS
Unless otherwise specified
Except as described in the applicableany prospectus supplement and any free writing prospectus in connection with a specific offering, we willcurrently intend to use the net proceeds from the sale of the securities offered under this prospectus for working capital, capital expenditures and investments and general corporate purposes. We may also use the net proceeds for the repayment, refinancing, redemption or repurchase of current or future indebtedness or capital stock and/or to invest in or acquire complementary or unrelated businesses or technologies, although we have no current commitments or agreements with respect to any such investments or acquisitions as of the date of this prospectus. We have not determined the amount of net proceeds to be used specifically for the foregoing purposes. As a result, our management will have broad discretion in the allocation of the net proceeds and investors will be relying on the judgment of our management regarding the application of the proceeds of any sale of the securities.
Each time we offer securities under this prospectus, we will describe the intended use of the net proceeds from that offering in the applicable prospectus supplement. The actual amount of net proceeds we spend on a particular use will depend on many factors, including, among other things, our future capital expenditures, the amount of cash required by our operations, and our future revenue growth, if any. Therefore, we will retain broad discretion in the use of the net proceeds.
We may offer shares of common stock, shares of preferred stock, debt securities or warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually or as units comprised of one or more of the following:
repayment other securities. We may offer up to $20,000,000of debt;
acquisitions;
capital expenditures;
redemption or repurchasesecurities under this prospectus. If securities are offered as units, we will describe the terms of any debt outstanding; and
working capital and general corporate purposes.
Pending any specific application, we may initially invest fundsthe units in marketable short-term, interest-bearing securities.
DILUTION OF EXISTING COMMON STOCK
Information (if any) regarding the securities offered will be included in
the relevanta prospectus supplement.
DESCRIPTION OF COMMONCAPITAL STOCK
General
The following is a description of our common stock. It does not purport to
be completecapital stock, together with any additional information we include in any applicable prospectus supplement or any related free writing prospectus, summarizes the material terms and is subject to, and qualified in its entirety by, the provisions of our Restated Certificatecommon stock and the preferred stock that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future common stock or preferred stock that we may offer, we will describe the particular terms of Incorporationany class or series of these securities in more detail in the applicable prospectus supplement. For the complete terms of our common stock and By-Laws, formspreferred stock, please refer to our articles of which have previously been filedincorporation, as amended, and our amended and restated bylaws that are incorporated by reference into the registration statement of which this prospectus andis a part or may be incorporated by thereference in this prospectus or any applicable prospectus supplement. The terms of these securities may also be affected by provisions of New Jersey law. See
"Anti-takeover Effectsthe Nevada Revised Statutes. The summary below and that contained in any applicable prospectus supplement or any related free writing prospectus are qualified in their entirety by reference to our articles of Provisionsincorporation, as amended, and our amended and restated bylaws.
As of Our Restated Certificatethe date of Incorporation and By-Laws" for more information regarding the provisions
ofthis prospectus, our Restated Certificate of Incorporation and By-Laws that could
effect an extraordinary corporate transaction.
General Matters
Our authorized capital stock consistsconsisted of 54,000,000200,000,000 shares of common stock, $1.00 par value $0.001 per share.share, and 50,000,000 shares of “blank check” preferred stock, par value $0.001 per share, of which 1,300,000 shares are designated as Series A Convertible Preferred Stock, 400,000 shares are designated as Series B Convertible Preferred Stock, shares are designated as Series C Convertible Preferred Stock and 7,402 shares are designated as Series D Convertible Preferred Stock. Our Board of Directors has the authority, without further action by the shareholders, to issue shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions granted to or imposed upon the preferred stock. As of March 28 2011, we had 8,928,309the date of this prospectus, there were 1,204,667 shares of our common stock issued and outstanding, and no shares of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock or Series D Convertible Preferred Stock outstanding. We do not have any authorized
preferred stock.
HoldersA fixed number of shares of Series C Convertible Preferred Stock will be designated in connection of the closing of our acquisition of U.S. Gold.
Common Stock
The holders of common stock are entitled to one vote per share on all matters to be voted upon by the shareholders ofand there are no cumulative rights. Subject to preferences that may be applicable to any outstanding preferred stock, the Company. The holders of common stock are entitled to receive ratably suchany dividends if any, asthat may be declared from time to time by the Board of Directors out of funds legally available therefore.for that purpose. In the event of our liquidation of the Company, dissolution or winding up, the holders of common stock are entitled to share ratably in all assets remaining after payment of liabilities.liabilities, subject to prior distribution rights of preferred stock then outstanding. The common stock has no preemptive redemption,or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the common stock. The outstanding shares of common stock are and the shares offered by us in any offering will be, when
issued and paid for, fully paid and nonassessable.
non-assessable, and any shares of common stock to be issued upon an offering pursuant to this prospectus and the related prospectus supplement will be fully paid and nonassessable upon issuance. To the extent that additional shares of our common stock may be issued in the future, the relative interests of the then existing shareholders may be diluted.
Preferred Stock
General
Our articles of incorporation, as amended, provide that our Board of Directors has the authority, without further action by the shareholders, to issue shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions granted to or imposed upon the preferred stock. Preferred stock may be designated and issued without authorization of shareholders unless such authorization is required by applicable law, the rules of The NASDAQ Capital Market or other securities exchange or market on which our stock is then listed or admitted to trading.
Our Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying, deferring or preventing a change in control of the Company.
A prospectus supplement relating to any series of preferred stock being offered will include specific terms relating to the offering. Such prospectus supplement will include, to the extent applicable:
| ● | the title and stated or par value of the preferred stock; | |
| ● | the number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock; | |
| ● | the dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the preferred stock; | |
| ● | whether dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall accumulate; | |
| ● | the provisions for a sinking fund, if any, for the preferred stock; | |
| ● | any voting rights of the preferred stock; | |
| ● | the provisions for redemption, if applicable, of the preferred stock; | |
| ● | any listing of the preferred stock on any securities exchange; | |
| ● | the terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the conversion price or the manner of calculating the conversion price and conversion period; | |
| ● | if appropriate, a discussion of United States federal income tax consequences applicable to the preferred stock; and | |
| ● | and any other specific terms, preferences, rights, limitations or restrictions of the preferred stock. |
The description of preferred stock in this prospectus and the description of the terms of a particular series of preferred stock in any applicable prospectus supplement are not complete. You should refer to any applicable certificate of designation for complete information.
All shares of preferred stock offered hereby will, when issued, be fully paid and nonassessable, including shares of preferred stock issued upon the exercise of preferred stock warrants or subscription rights, if any.
Series A Convertible Preferred Stock
On December 30, 2015, the Company filed with the Secretary of State of the State of Nevada a Certificate of Designation of Preferences, Rights and Limitations of Series A Preferred Stock (the “Series A COD”). The Series A COD is substantially similar to the Certificate of Amendment filed on or about November 10, 2014 with the New Jersey Division of Revenue and Enterprise Services, which originally designated the preferences, rights and limitations of the Company’s Series A Convertible Preferred Stock. Pursuant to the Series A COD, the Company designated 1,300,000 shares of its blank check preferred stock as Series A Convertible Preferred Stock. Each share of Series A Convertible Preferred Stock has a stated value of $5.00 per share. Holders of Series A Convertible Preferred Stock are entitled to receive preferential cumulative dividends at the rate of 8% per annum (equivalent to a fixed annual payment of $0.40 per share). The dividends are payable in shares of common stock valued at the weighted average price of the Company’s common stock over the 10 consecutive trading days ended on the second trading day immediately before the payment date. In the event of a liquidation, dissolution or winding up of the Company, each share of Series A Convertible Preferred Stock will be entitled to a per share preferential payment equal to the stated value, plus accrued and unpaid dividends. Subject to certain limitations as set forth below, each holder may convert the shares of Series A Convertible Preferred Stock into such number of shares of common stock equal to the stated value divided by $2.00, subject to adjustment. The Company is prohibited from effecting the conversion of Series A Convertible Preferred Stock to the extent that, as a result of such conversion, the holder would beneficially own more than 4.99% of the issued and outstanding shares of the Company’s common stock unless the holder elected a different percentage beneficial ownership limit. For so long as any shares of Series A Convertible Preferred Stock are outstanding, certain fundamental corporate actions set forth in the Series A COD require the affirmative vote or consent of holders of at least 90% of the votes entitled to be cast by the holders of Series A Convertible Preferred Stock. On other matters on which holders of common stock are entitled to vote, the holders of Series A Convertible Preferred Stock vote on an as-converted to common stock basis together with the holders of common stock. As of the date of this prospectus, there were no shares of Series A Convertible Preferred Stock outstanding.
Series B Convertible Preferred Stock
On January 21, 2016, the Company filed with the Secretary of State of the State of Nevada a Certificate of Designations, Preferences and Rights of 0% Series B Convertible Preferred Stock (the “Series B COD”). Pursuant to the Series B COD, the Company designated 400,000 shares of its blank check preferred stock as Series B Convertible Preferred Stock. Each share of Series B Convertible Preferred Stock has a stated value of $12.20 per share. In the event of a liquidation, dissolution or winding up of the Company, each share of Series B Convertible Preferred Stock will be entitled to a per share preferential payment equal to the par value. All shares of capital stock of the Company will be junior in rank to Series B Convertible Preferred Stock with respect to the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding-up of the Company unless otherwise stated. Holders of Series B Convertible Preferred Stock will be entitled to receive dividends if and when declared by the Company’s Board of Directors. In addition, the Series B Convertible Preferred Stock shall participate on an “as converted” basis, with all dividends declared on the common stock. Subject to certain limitations as set forth below, each holder may convert the shares of Series B Convertible Preferred Stock into such number of shares of common stock based on a conversion ratio, the numerator of which shall be the Base Amount (defined below) and the denominator of which shall be the Conversion Price (defined below). “Base Amount” is defined, as of the applicable date of determination, as the sum of (1) the aggregate stated value of the Series B Convertible Preferred Stock to be converted, plus (2) the accrued and unpaid dividends on Series B Convertible Preferred Stock. The “Conversion Price” of the Series B Convertible Preferred Stock is initially $0.61, subject to adjustment. The Company is prohibited from effecting the conversion of Series B Convertible Preferred Stock to the extent that, as a result of such conversion, the holder would beneficially own more than 4.99%, in the aggregate, of the issued and outstanding shares of the Company’s common stock calculated immediately after giving effect to the issuance of shares of common stock upon the conversion of the Series B Convertible Preferred Stock. A holder may increase or decrease the maximum percentage beneficial ownership by providing written notice to the Company; provided, however, that in no event shall the maximum percentage beneficial ownership exceed 9.99%. Holders of the Series B Convertible Preferred Stock do not possess any voting rights except as otherwise required by law. As of the date of this prospectus, there were no shares of Series B Convertible Preferred Stock outstanding.
Series C Convertible Preferred Stock
In connection with the closing of our acquisition of U.S. Gold, we will file with the Secretary of State of the State of Nevada a Certificate of Designation of Preferences, Rights and Limitations of 0% Series C Convertible Preferred Stock (the “Series C COD”). Each share of Series C Convertible Preferred Stock has a stated value of $100.00 per share and is convertible into such number of shares of common stock equal to the Base Amount (defined below) divided by the Conversion Price (defined below). “Base Amount” means the sum of (1) the stated value of the Series C Convertible Preferred Stock, plus (2) the unpaid dividend amount thereon as of such date of determination. “Conversion Price” means, with respect to each share of Series C Convertible Preferred Stock, as of the conversion date or other applicable date of determination, $1.00, subject to adjustment. Upon the liquidation, dissolution or winding up of the business of the Company, each holder of Series C Convertible Preferred Stock will be entitled to receive, for each share of Series C Convertible Preferred Stock held an amount in cash equal to, and not more than, the par value before payment is made to any other class or series of capital stock whose terms expressly provide that the holders of Series C Convertible Preferred Stock should receive preferential payment and the Company’s common stock; provided, however, that Series B Convertible Preferred Stock shall rank senior to Series C Convertible Preferred Stock. Holders of Series C Convertible Preferred Stock do not possess any voting rights and are entitled to receive dividends when and as declared by the Board of Directors. If at any time the Company grants, issues or sells any options, convertible securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of common stock purchase rights, then each holder will be entitled to acquire, upon the terms applicable to such purchase rights, the aggregate purchase rights which such holder could have acquired if such holder had held the number of shares of common stock acquirable upon complete conversion of all shares of Series C Convertible Preferred Stock (without taking into account any limitations or restrictions on the convertibility of such shares) held by such holder immediately before the date on which a record is taken for the grant, issuance or sale of such purchase rights, or, if no such record is taken, the date as of which the record holders of common stock are to be determined for the grant, issue or sale of such purchase rights; provided, however, that if the holder’s right to participate in any such purchase right would result in such holder exceeding the beneficial ownership limitation (described below), then such holder will not be entitled to participate in such purchase right until such time as the purchase rights would not result in such holder exceeding the beneficial ownership limitation. At no time may shares of Series C Convertible Preferred Stock be converted if such conversion would cause the holder to hold in excess of 4.99% of the issued and outstanding common stock of the Company. The Series C Convertible Preferred Stock is subject to adjustment in the event of stock dividends, splits and fundamental transactions.
Series D Convertible Preferred Stock
On August 4, 2016, the Company filed with the Secretary of State of the State of Nevada a Certificate of Designation of Rights, Powers, Preferences, Privileges and Restrictions of 0% Series D Convertible Preferred Stock (the “Series D COD”). Pursuant to the Series D COD, the Company designated 7,402 shares of its blank check preferred stock as Series D Convertible Preferred Stock. Each share of Series D Convertible Preferred Stock has a stated value of $136 per share, subject to adjustment. In the event of a liquidation, dissolution or winding up of the Company, each share of Series D Convertible Preferred Stock will be entitled to a per share preferential payment equal to the greater of (a) the Base Amount (defined below) thereof on the date of such payment and (B) the amount per share such holder would receive if such holder converted such Series D Convertible Preferred Stock into common stock immediately prior to the date of such payment. The Series D Convertible Preferred Stock ranks senior to the Company’s capital stock other than the Company’s Series B Convertible Preferred Stock and Series C Convertible Preferred Stock with respect to the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding-up of the Company. Holders of Series D Convertible Preferred Stock are entitled to receive dividends if and when declared by the Company’s Board of Directors. In addition, the Series D Convertible Preferred Stock participates on an “as converted” basis, with all dividends declared on the common stock. Subject to certain limitations as set forth below, each holder may convert the shares of Series D Convertible Preferred Stock into such number of shares of common stock based on a conversion ratio, the numerator of which shall be the Base Amount (defined below) and the denominator of which shall be the Conversion Price (defined below). “Base Amount” is defined, as of the applicable date of determination, as the sum of (1) the aggregate stated value of the Series D Convertible Preferred Stock to be converted, plus (2) the accrued and unpaid dividends on Series D Convertible Preferred Stock. The “Conversion Price” of the Series D Convertible Preferred Stock is initially $1.36, subject to adjustment. The Company is prohibited from effecting the conversion of Series D Convertible Preferred Stock to the extent that, as a result of such conversion, the holder would beneficially own more than 4.99%, in the aggregate, of the issued and outstanding shares of the Company’s common stock calculated immediately after giving effect to the issuance of shares of common stock upon the conversion of the Series D Convertible Preferred Stock. A holder may increase or decrease the maximum beneficial ownership percentage by providing written notice to the Company; provided, however, that in no event shall the maximum percentage beneficial ownership exceed 9.99%. Holders of the Series D Convertible Preferred Stock are entitled to vote on all matters submitted to the Company’s shareholders based on the number of shares of common stock such Series D Convertible Preferred Stock would be convertible into (voting as a class together with common stock) based on a per share conversion price of $2.72, subject to adjustment. As of the date of this prospectus, there were no shares of Series D Convertible Preferred Stock outstanding.
Dividends
The Company does not anticipate paying dividends in the foreseeable future as the Board of Directors intends to retain future earnings for use in the Company’s business. Any future determination as to the payment of dividends will depend upon the Company’s financial conditions, results of operations and such other factors as the Board of Directors deems relevant. In addition, the Company’s financing agreement with Rosenthal & Rosenthal, Inc. entered into as of November 6, 2013 contains covenants limiting the declaration and distribution of dividends.
Notwithstanding the foregoing, any determination to pay dividends will be at the discretion of the Company’s Board of Directors and will depend upon a number of factors, including the Company’s results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors the Board of Directors deems relevant.
Authorized but Unissued Shares
Our authorized but unissued shares of common stock and preferred stock will be available for future issuance without your approval. We may use additional shares for a variety of purposes, including future public offerings to raise additional capital, to fund acquisitions and as employee compensation. The existence of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Transfer Agent and Registrar
The Transfer Agenttransfer agent and Registrarregistrar for our common stock is AmericanEquity Stock Transfer and Trust Company,Transfer. Its address is 237 West 37th Street, Suite 601, New York, New York.
Listing
Our shares of common stock are quoted on The Nasdaq Capital Market under the
symbol "DRAM".
York 10018.
DESCRIPTION OF DEBT SECURITIES
The following description, oftogether with the terms ofadditional information we include in any applicable prospectus supplements or free writing prospectuses, summarizes the debt securities sets
forth certain generalmaterial terms and provisions of the debt securities that we may offer under this prospectus. We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply generally to which
any future debt securities we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement may relate. The particulardiffer from the terms we describe below. However, no prospectus supplement shall fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness. As of the debt
securities offered by anydate of this prospectus, supplement and the extent, if any, to
which these general provisions may apply to those debt securities will be
described in the prospectus supplement relating to thosewe have no outstanding registered debt securities. Accordingly, for a description ofUnless the context requires otherwise, whenever we refer to the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular issue of debt
securities, reference must be made to both the prospectus supplement
relating thereto and to the following description.
General
We may issue debt securities from time to time in one or more series. The
debt securities will be general obligations of Dataram Corporation. The debt
securities may be issued on a secured or unsecured, senior or subordinated
basis. In the event that any series of debt securities.
We will issue any senior debt securities will be subordinated
to other indebtednessunder the senior indenture that we have outstanding or may incur,will enter into with the terms of
the subordination will be set forth in the prospectus supplement relating to
the subordinated debt securities. Debt securities may be issued under one or
more indentures between us and one or more trusteestrustee named in the relevant
prospectus supplement, which we refer to assenior indenture. We will issue any subordinated debt securities under the trustee. Any statements
made in this prospectus relating to thesubordinated indenture and any supplemental indentures that we will enter into with the debt securities to
be issued undertrustee named in the indenture are summariessubordinated indenture. We have filed forms of certain terms and provisions
of the form of indenture that has been filedthese documents as Exhibit 4.2exhibits to the registration statement, of which this prospectus formsis a part, and are not
complete. You should readsupplemental indentures and forms of debt securities containing the indenture for provisions that mayterms of the debt securities being offered will be important to you. In addition, we will filefiled as exhibits to an amendment to the registration statement of which this prospectus is a part or will incorporatebe incorporated by reference from a current report on Form 8-Kreports that we file with the SEC,SEC.
The indentures will be qualified under the Trust Indenture Act of 1939, as applicable,amended, or the Trust Indenture Act. We use the term “trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indentures that contain the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
The terms of each series of debt securities will be established by or other agreements thatpursuant to a resolution of our Board of Directors and set forth or determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt we are offering beforesecurities being offered, including:
| ● | the title; | |
| ● | the principal amount being offered, and, if a series, the total amount authorized and the total amount outstanding; | |
| ● | any limit on the amount that may be issued; | |
| ● | whether or not we will issue the series of debt securities in global form, and, if so, the terms and who the depositary will be; | |
| ● | the maturity date; | |
| ● | whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; | |
| ● | the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; | |
| ● | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; | |
| ● | the terms of the subordination of any series of subordinated debt; | |
| ● | the place where payments will be made; | |
| ● | restrictions on transfer, sale or other assignment, if any; | |
| ● | our right, if any, to defer payment of interest and the maximum length of any such deferral period; | |
| ● | the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions; | |
| ● | provisions for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which we are obligated, pursuant thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable; | |
| ● | whether the indenture will restrict our ability or the ability of our subsidiaries to: | |
| - | incur additional indebtedness; | |
| - | issue additional securities; | |
| - | create liens; | |
| - | pay dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries; | |
| - | redeem capital stock; | |
| - | place restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets; | |
| - | make investments or other restricted payments; | |
| - | sell or otherwise dispose of assets; | |
| - | enter into sale-leaseback transactions; | |
| - | engage in transactions with stockholders or affiliates; | |
| - | issue or sell stock of our subsidiaries; or | |
| - | effect a consolidation or merger; |
| ● | whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; | |
| ● | a discussion of certain material or special United States federal income tax considerations applicable to the debt securities; | |
| ● | information describing any book-entry features; | |
| ● | the applicability of the provisions in the indenture on discharge; | |
| ● | whether the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended; | |
| ● | the denominations in which we will issue the series of debt securities if other than denominations of $1,000 and any integral multiple thereof; | |
| ● | the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and | |
| ● | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the issuance
of the related series debt. You should therefore consult those supplemental
agreements to obtain amended or updated information regarding the relevant
series of debt.
Theapplicable prospectus supplement relating tothe terms under which a particular series of debt securities will describe the terms of such debt securities being offered, including:
- the title;
- the maturity date;
- the interest rate, if any, and the methodmay be convertible into or exchangeable for calculating the
interest rate;
- the interest payment dates and the record dates for the interest
payments;
- any mandatory or optional redemption terms or prepayment,
conversion, and sinking fund terms;
- provisions regarding amendment of the terms of any indentureour common stock, our preferred stock or other agreement pursuant to which debt is issued;
- the place where we will pay principal and interest;
- if other than denominations of $1,000 or multiples of $1,000 in
excess thereof, the denominations the debt securities will be
issued in;
- whether the debt(including securities will be issued in the form of global
securities or certificates;
- additional provisions, if any, relating to defeasance;
- the currency or currencies, if other than the currency of the
United States, in which principal and interest will be paid;
- any United States federal income tax consequences;
- the dates on which premium, if any, will be paid;
- our right, if any, to defer payment of interest and the maximum
length of this deferral period;
- any listing on a securities exchange;
- limits on aggregate principal amount;
- terms of subordination of any subordinated debt securities;
- a description of the collateral securing the debt obligations,
if any:
- events of default, cure periods and remedies available;
- information regarding the trustee, if any;
- the initial public offering price; and
- other specific terms, including any additional events of default
or covenants.
We may, from time to time, without notice to or the consent of registered
holders of a particular series of debt securities, create and issue further
securities ranking pari passu with that series of debt securities in all
respects (or in all respects except for the payment of interest accruing
prior to the issue date of such further debt securities or except for the
first payment of interest following the issue date of such further debt
securities) and so that such further debt securities shall be consolidated
and form a single series with that particular series of debt securities and
shall have the same termsthird party). We will include provisions as to status, redemption or otherwise as that
series of debt securities.
We can issue an unlimited amount of debt securities under the indenture that
may be in one or more series with the same or various maturities, at par, at
a premium, or at a discount. The indenture does not limit our ability to
issue convertible or subordinated debt securities. Anywhether conversion or subordination provisions of a particular series of debt securities will be
set forth in the officer's certificate or supplemental indenture related to
that series of debt securities and will be described in the relevant
prospectus supplement. Such terms may include provisions for conversions,
eitherexchange is mandatory, at the option of the holder or at our option, inoption. We may include provisions pursuant to which
case the number of shares of our common stock or preferred stock or other securities to be received by(including securities of a third party) that the holders of the series of debt securities receive would be calculated as of a time and in the manner stated in the prospectus
supplement.
The debt securities will be issuable only in fully registered form without
couponssubject to adjustment.
Consolidation, Merger or in the form of one or more global securities, as described below
under "Global Securities". Sale
Unless the prospectus supplement specifieswe provide otherwise debt securities denominated in U.S. dollars will be issued only
in denominations of U.S.$1,000 and any integral multiple of U.S.$1,000 in
excess thereof. The prospectus supplement relating to debt securities
denominated in a foreign or composite currency will specify the authorized
denominations.
If the amount of payments of principal of and premium, if any, or any
interest on debt securities of any series is determined with reference to
any type of index or formula or changes in prices of particular securities
or commodities, the federal income tax consequences, specific terms and
other information with respect to these debt securities and this index or
formula, securities or commodities will be described in the relevant
prospectus supplement.
If the principal of and premium, if any, or any interest on debt securities
of any series are payable in a foreign or composite currency, the
restrictions, elections, federal income tax consequences, specific terms and
other information with respect to such debt securities and such currency
will be described in the relevant prospectus supplement.
Payment of principal of and premium, if any, on debt securities will be made
in the designated currency against surrender of any debt securities at the
Corporate Trust Office of the trustee in The City of New York. Unless
otherwise indicated in the prospectus supplement paymentapplicable to a particular series of any installment
of interest on debt securities, will be made to the person in whose name a
relevant debt security is registered at the close of business on the regular
record date for such interest. Unless otherwise indicated in the prospectus
supplement, payments of such interest will be made at the Corporate Trust
Office of the trustee in The City of New York or by a check in the
designated currency mailed to the holder at such holder's registered address.
Debt securities may be issued as original issue discount securities to be
offered and sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other special considerations
applicable to any original issue discount securities will be described in
the relevant prospectus supplement. "Original issue discount security" means
any debt security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof upon the occurrence of an event of default and the
continuation thereof.
Covenants
Consolidation, Merger and Sale of Assets
Unless otherwise provided in a prospectus supplement, we will agree under
the indenture that weindentures will not contain any covenant that restricts our ability to merge or consolidate, with or merge into, orsell, convey, transfer or leaseotherwise dispose of all or substantially all of our properties andassets. However, any successor to or acquirer of such assets to,
any Person (a "Successor Person"), and will not permit any Person to merge
into us in a transaction in which we are not the surviving entity, unless:
(i) the Successor Person (if not Dataram) is a corporation, limited
liability company, partnership or trust organized and validly existingmust assume all of our obligations under the laws of any domestic jurisdiction and assumes our obligations on any
outstandingindentures or the debt securities, and underas appropriate. If the indenture;
(ii) immediately after giving effectdebt securities are convertible into or exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the transaction, and treating any
Indebtedness which becomes our obligation as a resultconversion of the transaction as
having been incurred by us atdebt securities into securities that the timeholders of the transaction, no event of
default and no event which, after noticedebt securities would have received if they had converted the debt securities before the consolidation, merger or lapse of time or both, would
become an event of default, shall have occurred and be continuing; and
(iii) the trustee receives an officers' certificate and an opinion of
counsel stating that such action complies with this covenant.
sale.
Events of Default The indenture specifies that eachunder the Indenture
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indentures with respect to any series of debt securities that we may issue:
| ● | if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended; | |
| ● | if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase or otherwise, and the time for payment has not been extended; | |
| ● | if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and | |
| ● | if specified events of bankruptcy, insolvency or reorganization occur. |
We will constitutedescribe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt securities.
If an event of default with respect to the debt securities of a particular series:
(a) failure to pay principal of any debt security of that series at its
maturity;
(b) failure to pay any interest on any debt security of that series when
due, continued for 30 days;
(c) failure to deposit any sinking fund payment, whenoccurs and as due by the
terms of that series;
(d) failure to perform any covenant of ours applicable to that series in the
indenture, continued for 60 days after written notice of such failure is given by the trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of that series, as provided in the
indenture; and
(e) certain events in bankruptcy, insolvency or reorganization.
If an event of default (othercontinuing, other than an event of default describedspecified in clause
(e) above) shall occur and be continuing, eitherthe last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice as providedto us in writing, and to the indenturetrustee if notice is given by such holders, may declare the unpaid principal, amount of such series of the debt securities to bepremium, if any, and accrued interest, if any, due and payable immediately. If an event of default described in clause (e) above
shall occur,arises due to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, amountpremium, if any, and accrued interest, if any, of all the outstandingeach issue of debt securities of
that series will automatically,then outstanding shall be due and payable without any notice or other action byon the part of the trustee or any holder, become immediately due and payable. After any such acceleration, but
before a judgment or decree for payment of the money due, theholder.
The holders of a majority in aggregate principal amount of the outstanding debt securities of a particularan affected series may under certain circumstances, rescindwaive any default or event of default with respect to the series and annul such
acceleration if allits consequences, except defaults or events of default other thanregarding payment of principal, premium, if any, or interest, unless we have cured the non-paymentdefault or event of accelerated principal, have been cured or waived as provideddefault in accordance with the indenture. For information as toAny waiver shall cure the default or event of defaults, see "Modification and
Waiver."
default.
Subject to the provisionsterms of the indenture relating to the duties of the
trustee in caseindentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under thesuch indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders shall have offered to the trustee reasonable indemnity.
Subjectindemnity or security satisfactory to such provisions for the indemnification of the trustee, theit against any loss, liability or expense. The holders of a majority in aggregate principal amount of the outstanding debt securities of thatany series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to such series of the debt securities.
No holder of a debt security will have any right to institute any proceeding
with respect to the indenture, or for the appointment of a receiver or a
trustee, or for any other remedy thereunder, unless:
(i) such holder has previously given to the trustee written notice of a
continuing event of default with respect to such series of the debt
securities;
(ii) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series, have made written request,provided that:
| ● | the direction so given by the holder is not in conflict with any law or the applicable indenture; and | |
| ● | subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
The indentures provide that if an event of default has occurred and such holderis continuing, the trustee will be required in the exercise of its powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse to follow any direction that conflicts with law or holders have offered reasonable indemnity,the indenture, or that the trustee determines is unduly prejudicial to the trustee to
institute such proceeding as trustee; and
(iii)rights of any other holder of the relevant series of debt securities, or that would involve the trustee has failedin personal liability. Prior to institutetaking any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred by taking or not taking such proceeding, and has not
received from the holders of a majority in aggregate principal amountaction.
A holder of the
outstanding debt securities of thatany series will have the right to institute a direction inconsistent with
such request, within 60 days after suchproceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies only if:
| ● | the holder has given written notice to the trustee of a continuing event of default with respect to that series; | |
| ● | the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request and | |
| ● | the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These limitations do not apply to a suit instituted by a holder of a debt security forsecurities if we default in the enforcement of payment of the principal, premium, if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured or waived. Except in the case of a default in the payment of principal or premium of, or interest on, suchany debt security on or after the applicable due datecertain other defaults specified in such
debt security.
Modification and Waiver
Together withan indenture, the trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive committee or a trust committee of directors, or responsible officers of the trustee, in good faith determine that withholding notice is in the best interests of holders of the relevant series of debt securities.
Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debt securities that we may modifyissue, we and the trustee may change an indenture without the consent of any holder for certain purposes, including evidencingholders with respect to the succession of
another person to us and such person's assumption of our obligationsfollowing specific matters:
| ● | to fix any ambiguity, defect or inconsistency in the indenture; | |
| ● | to comply with the provisions described above under “DESCRIPTION OF DEBT SECURITIES—Consolidation, Merger or Sale”; | |
| ● | to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act; | |
| ● | to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture; | |
| ● | to provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided under “DESCRIPTION OF DEBT SECURITIES—General,” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; | |
| ● | to evidence and provide for the acceptance of appointment hereunder by a successor trustee; | |
| ● | to provide for uncertificated debt securities and to make all appropriate changes for such purpose; | |
| ● | to add such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred to us in the indenture; or | |
| ● | to change anything that does not adversely affect the interests of any holder of debt securities of any series in any material respect. |
In addition, under the indenture, adding to our covenants or eventsindentures, the rights of default, establishing
forms or termsholders of a series of debt securities curing ambiguities and other purposes
which do not adversely affect the holders in any material respect.
Other modifications and amendments of the indenture may be madechanged by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of each series of the outstanding debt securities of each series that is affected by such modification or amendment, all holders of all such
affected series voting together as one class.
No such modification or amendment may, withoutaffected. However, subject to the consent of the holder of
each outstanding debt security affected thereby:
(a) change the stated maturity of the principal of, or any installment of
interest on, or the redemption price of, any such debt security;
(b) reduce the principal amount of or interest on, any such debt security;
(c) change currency of payment of principal of or interest on, any such debt
security;
(d) impair the right to institute suit for the enforcement of any payment on
any such debt security;
(e) reduce the percentage in principal amount of outstanding debt securities
of a particular series, the consent of whose holders is required for
modification or amendmentterms of the indenture or for waiver of compliance with
certain provisions of the indenture or waiver of certain defaults; or
(f) modify such provisions with respect to modification and waiver.
The holders of at least a majority in principal amount of eachany series of the
outstanding debt securities that is affected by such waiver, all holders of
all such affected series voting together as one class,we may waive our
compliance with certain restrictive provisions of the indenture, and may
waive any past default under the indenture, except a defaultissue or otherwise provided in the payment
of principal or interest and certain covenants and provisions of the
indenture which cannot be amended without the consent of the holder of each
outstanding debt security affected by such default.
Defeasance and Discharge; Covenant Defeasance
Unless the terms of a particular series provide otherwise, we may elect, at
our option at any time, to have the indenture provisions relating to
defeasance and discharge of indebtedness, or relating to defeasance of
certain restrictive covenants in the indenture, applied to any series of the
outstanding debt securities.
Defeasance and Discharge
The indenture provides that upon our exercise of our option to have the
provisions relating to defeasance and discharge appliedprospectus supplement applicable to a particular series of the debt securities, we willand the trustee may only make the following changes with the consent of each holder of any outstanding debt securities affected:
| ● | extending the stated maturity of the series of debt securities; | |
| ● | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption or repurchase of any debt securities; or | |
| ● | reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we may elect to be discharged from all our obligations with respect to suchone or more series of the debt securities (except for
certain obligations to exchange or register the transfer of debt securities, except for specified obligations, including obligations to:
| ● | register the transfer or exchange of debt securities of the series; | |
| ● | replace stolen, lost or mutilated debt securities of the series; | |
| ● | maintain paying agencies; | |
| ● | hold monies for payment in trust; | |
| ● | recover excess money held by the trustee; | |
| ● | compensate and indemnify the trustee; and | |
| ● | appoint any successor trustee. |
In order to replace stolen, lost or mutilated debt securities,exercise our rights to maintain paying
agencies and to hold moneys for payment in trust) uponbe discharged, we must deposit with the deposit in trust
for the benefit of the holders of the debt securities of such series oftrustee money or U.S. government obligations or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms,
will provide money in an amount sufficient to pay all the principal of, and any premium and interest on, the debt securities of suchthe series at maturityon the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in accordancefully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, known as DTC, or another depositary named by us and identified in a prospectus supplement with respect to that series. See “LEGAL OWNERSHIP OF SECURITIES” below for a further description of the terms relating to any book-entry securities.
At the option of the holder, subject to the terms of the indentureindentures and suchthe limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities. Such defeasance
or discharge may occur only if, amongsecurities of any series can exchange the debt securities for other things, we have delivereddebt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the trustee an opinionterms of counselthe indentures and the limitations applicable to global securities set forth in the effect that we have received
from, or there has been published by, the United States Internal Revenue
Service a ruling, or there has been a change in tax law, in either case to
the effect thatapplicable prospectus supplement, holders of the debt securities of such series will not
recognize gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax
on the same amount, in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge were not to occur.
Defeasance of Certain Covenants
The indenture provides that, upon our exercise of our option to have the
provisions relating to defeasance of certain restrictive covenants applied
to a particular series ofmay present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may with respectrequire payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to such
series, omit to comply with certain restrictive covenants, including those
described under "-Consolidation, Merger and Salethe security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of Assets," andany transfer agent or approve a change in the occurrence of certain events of default,office through which are described above in clause
(d) under "Events of Default," will be deemed not to be or result in an
event of default, in each case with respect to such series.
We, in order to exercise such option,any transfer agent acts, except that we will be required among other things:
(1) to deposit,maintain a transfer agent in trusteach place of payment for the benefit of the holders of such series of the debt securities money or U.S. government obligations, or both, which,
through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficienteach series.
If we elect to pay the principal of and interest on such series ofredeem the debt securities at
maturity in accordance with the terms of the indenture and such debt
securities, and
(2) to deliver to the trustee an opinion of counsel to the effect that
holders of suchany series, of the debt securitieswe will not recognize gain or
loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income taxrequired to:
| ● | issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or | |
| ● | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the same amount, in the same manner and at the same times as would have
been the case if such deposit and defeasance were not to occur.
In the event we exercise this option and the debt securities are declared
due and payable because ofTrustee
The trustee, other than during the occurrence of any event of default, the
amount of money and U.S. government obligations so deposited in trust would
be sufficient to pay amounts due on that series of the debt securities at
maturity but may not be sufficient to pay amounts due on that series of the
debt securities upon any acceleration resulting from such event of default.
In such case, we would remain liable for such payments.
Regarding the Trustee
The indenture provides that, except during the continuance of an event of default the trustee willunder an indenture, undertakes to perform only suchthose duties as are specifically set forth in the indenture. Duringapplicable indenture and is under no obligation to exercise any of the existencepowers given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee will exercise such rights and powers vested in it under the
indenture andmust use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstancesor use in the conduct of such
person'shis or her own affairs.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest payment.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that, unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indentureindentures and provisionsthe debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act incorporated by
reference therein contain limitations on the rights of the trustee, should
it become a creditor of us, to obtain payment of claims in certain cases or
to realize on certain property received by it in respect of any such claim
as security or otherwise. is applicable.
Ranking Debt Securities
The trustee is permitted to engage in other
transactions with us or any affiliate of us; provided, however, that if it
acquires any conflicting interest (as defined in the indenture or in the
Trust Indenture Act), it must eliminate such conflict or resign.
The trustee for anysubordinated debt securities will be set forthunsecured and will be subordinate and junior in priority of payment to certain other indebtedness to the applicableextent described in a prospectus supplement. FormThe subordinated indenture does not limit the amount of Debt Securities
Eachsubordinated debt security will be represented either by a certificate issued in
definitive form to a particular investorsecurities that we may issue. It also does not limit us from issuing any other secured or by one or more global securities
representing the entire issuance of securities. Certificated securities in
definitive form and globalunsecured debt.
The senior debt securities will be issuedunsecured and will rank equally in registered form.
Definitive securities name you or your nominee asright of payment to all our other senior unsecured debt. The senior indenture does not limit the owneramount of the security,
and in order to transfer or exchange these securities or to receive payments
other than interest or other interim payments, you or your nominee must
physically deliver the securities to the trustee, registrar, paying agent or
other agent, as applicable.
Global securities name a depositary or its nominee as the owner of thesenior debt securities represented by these global securities. that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
Existing Senior and Subordinated Debt
As of May 10, 2017, we had no existing senior or subordinated debt issued under any indenture.
The depositary maintains
a computerized system that will reflect each investor's beneficial ownership
of the securities through an account maintained by the investor with its
broker/dealer, bank, trust company or other representative, as we explain
more fully below.
Global Securities
We may issue the debt securities in whole or in part in the form of one or
more fully registered global securities that will be deposited with a
depositary or its nominee identified in the prospectus supplement relating
to that series and registered in the name of that depositary or nominee. In
those cases, one or more registered global securities will be issued in a
denomination or aggregate denominations equal to the portion of the
aggregate principal or face amount of the securities to be represented by
registered global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global security may
not be transferred except as a whole by and among the depositary for the
registered global security, the nominees of the depositary or any successors
of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement
with respect to any securities to be represented by a registered global
security will be described in the prospectus supplement relating to those
securities. We anticipate that the following provisions will apply to all
depositary arrangements.
Ownership of beneficial interests in a registered global security will be
limited to persons, called participants, that have accountsdescription, together with the depositary or persons that may hold interests through participants. Upon the
issuance of a registered global security, the depositary will credit, on its
book-entry registration and transfer system, the participants' accounts with
the respective principal or face amounts of the securities beneficially
owned by the participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts to be
credited. Ownership of beneficial interests in a registered global security
will be shown on, and the transfer of ownership interests will be effected
only through, records maintained by the depositary, with respect to
interests of participants, and on the records of participants, with respect
to interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical delivery
of these securities in definitive form. These laws may impair your ability
to own, transfer or pledge beneficial interests in registered global
securities.
So long as the depositary, or its nominee, is the registered owner of a
registered global security, that depositary or its nominee, as the case may
be, will be considered the sole owner or holder of the securities
represented by the registered global security for all purposes under the
indenture. Except as described below, owners of beneficial interests in a
registered global security will not be entitled to have the securities
represented by the registered global security registered in their names,
will not receive or be entitled to receive physical delivery of the
securities in definitive form and will not be considered the owners or
holders of the securities under the indenture. Accordingly, each person
owning a beneficial interest in a registered global security must rely on
the procedures of the depositary for that registered global security and, if
that person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights of a
holder under the indenture. We understand that under existing industry
practices, if we request any action of holders or if an owner of a
beneficial interest in a registered global security desires to give or take
any action that a holder is entitled to give or take under the indenture,
the depositary for the registered global security would authorize the
participants holding the relevant beneficial interests to give or take that
action, and the participants would authorize beneficial owners owning
through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as
the case may be, as the registered owner of the registered global security.
None of Dataram, the trustee or any agent of Dataram or agent of the trustee
will have any responsibility or liability for any aspect of the records
relating to payments made on account of beneficial ownership interests in
the registered global security or for maintaining, supervising or reviewing
any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a
registered global security, upon receipt of any payment of principal,
premium or interest to holders on that registered global security, will
immediately credit participants' accounts in amounts proportionate to their
respective beneficial interests in that registered global security as shown
on the records of the depositary. We also expect that payments by
participants to owners of beneficial interests in a registered global
security held through participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered
global security is at any time unwilling or unable to continue as depositary
or ceases to be a clearing agency registered under the Exchange Act and a
successor depositary registered as a clearing agency under the Exchange Act
is not appointed by us within 90 days, we will issue securities in
definitive form in exchange for the registered global security that had been
held by the depositary. In addition,additional information we may atinclude in any time and in our sole
discretion decide not to have any of the securities represented by one or
more registered global securities. If we make that decision, we will issue
securities in definitive form in exchange for all of the registered global
security or securities representing those securities. Any securities issued
in definitive form in exchange for a registered global security will be
registered in the name or names that the depositary gives to the trustee or
other relevant agent of ours or theirs. It is expected that the depositary's
instructions will be based upon directions received by the depositary from
participants with respect to ownership of beneficial interests in the
registered global security that had been held by the depositary.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase shares of our common stock and/or
debt securities in one or more series together with other securities or
separately, as described in the applicable prospectus supplement.
Below is a description of certain generalsupplements and free writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer. Particular termsoffer under this prospectus, which may consist of the warrants will be
described in the warrant agreements and the prospectus supplement to the
warrants.
The applicable prospectus supplement will contain, where applicable,
the following terms of and other information relating to the warrants:
- the title of the warrants;
- the offering price of the warrants;
- the aggregate number of the warrants;
- the currency or currency units in which the offering price, if
any, and the exercise price are payable;
- the designation, amount and terms of the securities purchasable
upon exercise of the warrants;
- if applicable, the exercise price for shares of ourpurchase common stock, and the number of shares of commonpreferred stock to be received upon
exercise of the warrants;
- if applicable, the exercise price for our debt securities, the
amount of debt securities to be received upon exercise, and a
description of that series of debt securities;
- the date on which the right to exercise the warrants will begin
and the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the warrants;
- whether the warrants will be issued in fully registered form or
bearer form, in definitive or global form or in any combination
of these forms, although, in any case, the form of a warrant
included in a unit will correspond to the form of the unit and of
any security included in that unit;
- any applicable material U.S. federal income tax consequences;
- the identity of the warrant agent for the warrants and of any
other depositaries, execution or paying agents, transfer agents,
registrars or other agents;
- the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities
exchange;
- if applicable, the date from and after which the warrants and the
common stock and/or debt securities will be separately
transferable;
- if applicable, the minimum or maximum amount of the warrants thatand may be exercised at any one time;
- information with respect to book-entry procedures, if any;
- the anti-dilution provisions of the warrants, if any;
- any redemption or call provisions;
- whether the warrants are to be sold separately or with other
securities as parts of units; and
- any additional terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants.
Transfer Agent and Registrar
The transfer agent and registrar for any warrants will be set forth in
the applicable prospectus supplement.
DESCRIPTION OF UNITS
We may issue units consisting of common stock, debt securities and/or
warrants for the purchase of common stock and/or debt securitiesissued in one or more series. InWarrants may be offered independently or together with common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we have summarized certain general features
of the units. We urge you, however, to read the prospectus supplements
related to the series of units being offered, as well as the unit agreements
that contain the terms of the units. In addition, the prospectus supplement
relating to units will describe the particular terms of any unitsseries of warrants that we issue, including
as applicable:
- the designation and terms of the units and the securities
includedmay offer in more detail in the units;
- the description of theapplicable prospectus supplement and any applicable free writing prospectus. The terms of any unitwarrants offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will issue the warrants under a warrant agreement governingthat we will enter into with a warrant agent to be selected by us. The warrant agent will act solely as an agent of ours in connection with the units;
- any provisionwarrants and will not act as an agent for the issuance, payment, settlement, transferholders or exchangebeneficial owners of the units;
- the date, if any, on and after which the units may be
transferable separately;
- whether we will apply to have the units traded on a securities
exchange or securities quotation system;
- any material United States federal income tax consequences; and
- how, for United States federal income tax purposes, the purchase
price paid for the units is to be allocated among the component
securities.warrants. We will file as exhibits to an amendment to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file with the SEC, as applicable, the form of unitwarrant agreement, if any, and any supplemental agreementsincluding a form of warrant certificate, that describedescribes the terms of the particular series of unitswarrants we are offering before the issuance of the related series of warrants. The following summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to a particular series of warrants. We urge you to read the applicable prospectus supplement and any applicable free writing prospectus related to the particular series of warrants that we sell under this prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms relating to a series of warrants, including:
| ● | the offering price and aggregate number of warrants offered; | |
| ● | the currency for which the warrants may be purchased; | |
| ● | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; | |
| ● | if applicable, the date on and after which the warrants and the related securities will be separately transferable; | |
| ● | in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; | |
| ● | in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; | |
| ● | the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; | |
| ● | the terms of any rights to redeem or call the warrants; | |
| ● | any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; | |
| ● | the dates on which the right to exercise the warrants will commence and expire; | |
| ● | the manner in which the warrant agreements and warrants may be modified; | |
| ● | United States federal income tax consequences of holding or exercising the warrants; | |
| ● | the terms of the securities issuable upon exercise of the warrants; and | |
| ● | any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
| ● | in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or | |
| ● | in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
The following description, together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including:
| ● | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; | |
| ● | any provisions of the governing unit agreement that differ from those described below; and | |
| ● | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The provisions described in this section, as well as those described under “DESCRIPTION OF CAPITAL STOCK,” “DESCRIPTION OF DEBT SECURITIES” and “DESCRIPTION OF WARRANTS” will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We, the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary. See “LEGAL OWNERSHIP OF SECURITIES.”
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not legal holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the legal holders.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street name, you should check with your own institution to find out:
| ● | how it handles securities payments and notices; |
| ● | whether it imposes fees or charges; | |
| ● | how it would handle a request for the holders’ consent, if ever required; | |
| ● | whether and how you can instruct it to send you securities registered in your own name so you can be a legal holder, if that is permitted in the future; | |
| ● | how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and | |
| ● | if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “—Special Situations When A Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations For Global Securities
As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only as global securities, an investor should be aware of the following:
| ● | an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; | |
| ● | an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above; | |
| ● | an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; | |
| ● | an investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; | |
| ● | the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in the global security. We and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary in any way; | |
| ● | the depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and | |
| ● | financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. | |
Special Situations When A Global Security Will Be Terminated
In a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street name investors above.
A global security will terminate when the following special situations occur:
| ● | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; | |
| ● | if we notify any applicable trustee that we wish to terminate that global security; or | |
| ● | if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and neither we nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
We may sell the securities being offered hereby and in any accompanying
prospectus supplement may be sold in any one or more of the following ways from time to time:
- directly to purchasers;
- through agents;
- to or through underwriters;
- through dealers;
- directly to our stockholders; or
-
| ● | through agents to the public or to investors; | |
| ● | to underwriters for resale to the public or to investors; | |
| ● | negotiated transactions; |
| ● | block trades; | |
| ● | directly to investors; or | |
| ● | through a combination |
As set forth in more detail below, the securities may be effecteddistributed from time to time in one or more transactions transactions:
| ● | at a fixed price or prices, which may be changed; | |
| ● | at market prices prevailing at the time of sale; | |
| ● | at prices related to such prevailing market prices; or | |
| ● | at negotiated prices. |
We will set forth in a fixed price or prices, which may be changed, at
market prices prevailing atprospectus supplement the timeterms of sale, at prices related to such
prevailing market prices or at negotiated prices.
We may solicit offers to purchase directly. Offers to purchasethat particular offering of securities, also may be solicited by agents designated by us from time to time. Any such
agent involvedincluding:
| ● | the name or names of any agents or underwriters; | |
| ● | the purchase price of the securities being offered and the proceeds we will receive from the sale; | |
| ● | any over-allotment options under which underwriters may purchase additional securities from us; | |
| ● | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; | |
| ● | any initial public offering price; | |
| ● | any discounts or concessions allowed or reallowed or paid to dealers; and | |
| ● | any securities exchanges or markets on which such securities may be listed. |
Only underwriters named in the offer or saleprospectus supplement are underwriters of the securities in respect of which
this prospectus is delivered will be named, and any commissions payableoffered by us to such agent will be set forth, in the applicable prospectus supplement. Unless otherwise indicated
If underwriters are used in such prospectus supplement, any
such agent will be acting on a reasonable best efforts basis for the period
of its appointment. Any such agent may be deemed to be an underwriter, as
that term is defined in the Securities Act, of the securities so offered and
sold.
If securities are sold by means of an underwritten offering, we will execute an underwriting agreement with ansuch underwriters and will specify the name of each underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters, the
respective amounts underwritten and the terms of the transaction including
commissions,(including any underwriting discounts and any other terms constituting compensation of the underwriters and dealers, if any will be set forthdealers) in the applicablea prospectus supplement
which will be used by the underwriters to make resales of thesupplement. The securities in
respect of which this prospectus is being delivered to the public. If
underwriters are utilized in the sale of any securities in respect of which
this prospectus is being delivered, such securities will be acquired by the
underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at fixed public
offering prices, at market prices prevailing at the time of sale or at
varying prices determined by the underwriters at the time of sale.
Securities may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters.investment banking firms or others, as designated. If any underwriter oran underwriting syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are utilizedused in the sale, the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of securities, unlesssale. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. Unless otherwise indicatedset forth in the applicable prospectus supplement, the underwriting agreement will provide that the obligations of the underwriters areto purchase the offered securities will be subject to certain conditions precedent and that the underwriters with respect to a sale of such securities will be obligated to purchase all suchof the offered securities if any are purchased.
We may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the initial public offering price, (withwith additional underwriting commissions or discounts),discounts, as may be set forth in thea related prospectus supplement relating thereto. If we grant any over-allotment
option, thesupplement. The terms of suchany over-allotment option will be set forth in the prospectus supplement for suchthose securities.
If we use a dealer is used in the sale of the securities in respect of whichbeing offered pursuant to this prospectus is delivered,or any prospectus supplement, we will sell suchthe securities to the dealer, as principal. The dealer may then resell suchthe securities to the public at varying prices to be determined by suchthe dealer at the time of resale. Any
such dealer may be deemed to be an underwriter, as such term is defined in
the Securities Act,The names of the securities so offered and sold. The name of the
dealerdealers and the terms of the transaction will be specified in a prospectus supplement.
We may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement relating thereto.
Offerspursuant to purchase securities may be solicited directly by usdelayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
In connection with the sale thereofof the securities, underwriters, dealers or agents may be made byreceive compensation from us directlyor from purchasers of the securities for whom they act as agents in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of the securities, and any institutional investors or others whothat purchase securities directly and then resell the securities, may be deemed to be underwriters, withinand any discounts or commissions received by them from us and any profit on the meaningresale of the securities by them may be deemed to be underwriting discounts and commissions under the Securities Act
with respect to any resale thereof. The terms of any such sales will be
described in the prospectus supplement relating thereto.
Act.
We may offer our equity securities into an existing trading market on the
terms described in the applicable prospectus supplement. Underwritersprovide agents and dealers who may participate in any at-the-market offerings will be described
in the prospectus supplement relating thereto.
Agents, underwriters and dealers may be entitled under relevant agreements
with us to indemnification by us against certainparticular civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments whichthat the agents or underwriters may make with respect to such agents,liabilities. Agents and underwriters and dealers may be required to make
in respect thereof.
Any underwriter may engage in stabilizingtransactions with, or perform services for, us in the ordinary course of business.
In addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with such a transaction, the third parties may, pursuant to this prospectus and syndicate coveringthe applicable prospectus supplement, sell securities covered by this prospectus and the applicable prospectus supplement. If so, the third party may use securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities covered by this prospectus and the applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement. The third party in such sale transactions will be an underwriter and will be identified in accordance with Rule 104 under Regulation M. Rule 104
permits stabilizing bids to purchase the underlying security so long asapplicable prospectus supplement or in a post-effective amendment.
To facilitate an offering of a series of securities, persons participating in the stabilizing bids do not exceed a specified maximum. The underwritersoffering may over-allot sharesengage in transactions that stabilize, maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities, which involves the sale by persons participating in connection with anthe offering of more securities thereby creating athan have been sold to them by us. In those circumstances, such persons would cover such over-allotments or short positionpositions by purchasing in the underwriters' account.
Syndicate covering transactions involve purchasesopen market or by exercising the over-allotment option granted to those persons. In addition, those persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market after the distribution has been completedor by imposing penalty bids, whereby selling concessions allowed to underwriters or dealers participating in order to cover
syndicate short positions. Stabilizing and syndicate coveringany such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may causebe to stabilize or maintain the market price of the securities to be higher than it wouldat a level above that which might otherwise beprevail in the absence of such transactions. Theseopen market. Such transactions, if commenced, may be discontinued at any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions described above, if implemented, may elect to list any serieshave on the price of securities on an exchange but, unlessour securities.
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than our common stock, which is listed on The NASDAQ Capital Market. We may elect to list any other class or series of securities on any exchange or market, but we shallare not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so. Noso and may discontinue any market making at any time without notice. We cannot give any assurance can be given as to the liquidity of the trading market for any of the securities.
Agents, underwriters and dealers may be customers of, engage in transactions
In order to comply with or perform services for, us and our subsidiaries in the ordinary
course of business.
We may lend or pledge securities to a financial institution or other third
party that in turn may sell the securities using this prospectus. Such
financial institution or third party may transfer its short position to
investors in our securities or in connection with a simultaneous offeringlaws of other securities offered by this prospectus.
To comply withsome states, if applicable, state securities laws, the securities offered bypursuant to this prospectus will be sold if necessary, in such jurisdictionsthose states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold in some states unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with the Exchange Act or Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of these activities at any time.
Any underwriters who are qualified market makers on The anticipated dateNASDAQ Capital Market may engage in passive market making transactions in the securities on The NASDAQ Capital Market in accordance with Rule 103 of deliveryRegulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security. If all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
The validity of the issuance of the securities offered hereby will be set forthpassed upon for us by counsel. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement relating to each offer.
ANTITAKEOVER EFFECTS OF PROVISIONS OF OUR RESTATED CERTIFICATE OF
INCORPORATION AND BY-LAWS
Our by-laws provide that the Board of Directors shall consist of not less
than three or more than fifteen members, with the exact number to be
determined by the vote of not less than a majority of the Board of Directors
from time to time. Unless otherwise required by law, vacancies on the Board
of Directors, including vacancies resulting from an increase in the number
of directors or the removal of directors, may be filled by an affirmative
vote of a majority of the directors then in office. Although shareholders
holding a majority of shares may both appoint directors and remove directors
with or without cause, the ability of the Board of Directors to increase the
number of directors and to appoint directors may make it more difficult to
change the Board of Directors, and should promote the continuity of existing
management. These and other provisions also may have the effect of
deterring, preventing or delaying changes in control or management.
NEW JERSEY SHAREHOLDERS PROTECTION ACT
The New Jersey Shareholders Protection Act, NJSA 14A:10A?1 et seq., which we
refer to as New Jersey Act, prohibits certain New Jersey corporations, such
as Dataram, from entering into certain "business combinations" with an
"interested shareholder" (any person who is the beneficial owner of 10% or
more of such corporation's outstanding voting securities) for five years
after such person became an interested shareholder, unless the business
combination or the interested shareholder's acquisition of stock was
approved by the corporation's Board of Directors prior to such interested
shareholder's stock acquisition date. After the five-year waiting period
has elapsed, a business combination between such corporation and an
interested shareholder will be prohibited unless the business combination is
approved by the holders of at least two-thirds of the voting stock not
beneficially owned by the interested shareholder, or unless the business
combination satisfies the New Jersey Act's fair price provision intended to
provide that all shareholders (other than the interested shareholders)
receive a fair price for their shares.
The New Jersey Act defines "business combination" to include the following
transactions between a corporation or a subsidiary and an interested
shareholder or such interested shareholder's affiliates: (1) the merger or
consolidation of the corporation with the interested shareholder or any
corporation that after the merger or consolidation would be an affiliate or
associate of the interested shareholder; (2) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition to or with the interested
shareholder, which has an aggregate market value equal to 10% or more of the
aggregate market value of all of the assets or of the outstanding stock, or
10% or more of the income of the corporation or its subsidiaries; (3) the
issuance or transfer to the interested shareholder of any stock of the
corporation having an aggregate market value equal to or greater than 5% of
the corporation's outstanding stock; (4) the adoption of a plan or proposal
for the liquidation or dissolution of the corporation proposed by the
interested shareholder; (5) any reclassification of securities proposed by
the interested shareholder that has the effect, directly or indirectly, of
increasing any class or series of stock that is owned by the interested
shareholder; and (6) the receipt by the interested shareholder of any loans
or other financial assistance from the corporation.
The New Jersey Act does not apply to certain business combinations,
including those with persons who acquired 10% or more of the voting power of
the corporation prior to the time the corporation was required to file
periodic reports pursuant to the Exchange Act or prior to the time the
corporation's securities began to trade on a national securities exchange.
LEGAL MATTERS
The validity of the shares of common stock and matters governed by New
Jersey law will be passed upon by Dillon, Bitar & Luther, L.L.C.
supplement.
The consolidated financial statements of Dataram Corporation and subsidiaries as of and for the year ended April 30, 2016, incorporated in this Prospectusherein by reference, from the Company's Annual Report on Form 10-K have been audited by J.H. CohnMarcum LLP, an independent registered public accounting firm, as statedset forth in their report, which issuch report includes an explanatory paragraph as to the Company’s ability to continue as going concern, and are incorporated herein by reference which
report expresses an unqualified opinion on the consolidated financial
statements. Such financial statements have been so incorporated in reliance upon such report given on the reportauthority of such firm given upon their authority as experts in accounting and auditing. The consolidated financial statements of Dataram Corporation and subsidiaries as of and for the year ended April 30, 2015, incorporated herein by reference, have been audited by Anton & Chia, LLP, independent registered public accounting firm, as set forth in their report, such report includes an explanatory paragraph as to the Company’s ability to continue as going concern, and are incorporated by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain all the information that is included in the registration statement. You will find additional information about us in the registration statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter.
We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission.SEC. You may read and copy any document thatmaterials we file with the SEC at the SEC’s Public Reference Room of the SEC
located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available to the public over the Internet at the SEC’s website at http://www.sec.gov. In addition, the SEC maintains anwe make available on or through our Internet site copies of these reports as soon as reasonably practicable after we electronically file or furnish them to the SEC. Our Internet website can be found at www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically, including
Dataram. Except as expressly set forth under "Information Incorporated by
Reference," we are not incorporating the contents of the SEC website into
this prospectus.
http://www.dataram.com.
INCORPORATION OF DOCUMENTS BY REFERENCE
We have filed with the SEC a registration statement on Form S-3 (together
with all amendments and exhibits, the "registration statement")SEC under the Securities Act of 1933, as amended with respect to the offering of common
stock.Act. This prospectus which constitutesis part of the registration statement does not contain all of the information set forth in the
registration statement. Certain parts ofbut the registration statement are
omitted from the prospectus in accordance with the rulesincludes and regulations of
the SEC.
Our common stock is listed on The NASDAQ Capital Marketincorporates by reference additional information and similar
information can be inspected and copied at the offices of the Financial
Industry Regulatory Authority, 1735 K Street, N.W., Washington, D.C. 20006.
INFORMATION INCORPORATED BY REFERENCEexhibits. The SEC allowspermits us to incorporate“incorporate by reference in this prospectusreference” the information contained in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents.
Thedocuments rather than by including them in this prospectus. Information that is incorporated by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus. Information that we file later with the SEC will automatically update and supersede the information that is either contained, or incorporated by reference, in this prospectus, updates (and,and will be considered to be a part of this prospectus from the extent of any
conflict, supersedes) information incorporated by reference that wedate those documents are filed. We have filed with the SEC, prior to the date of this prospectus. You should read
all of the information incorporated by reference because it is an important
part of this prospectus.
Weand incorporate by reference in this prospectus:
| ● | Our Annual Report on Form 10-K for the year ended April 30, 2016 filed with the SEC on July 29, 2016; | |
| ● | Our Quarterly Reports on Form 10-Q for the quarterly periods ended July 31, 2016, October 31, 2016 and January 31, 2017, filed with the SEC on December 15, 2016, September 14, 2016 and March 15, 2017, respectively; | |
| ● | Our Current Reports on Form 8-K or Form 8-K/A (excluding any reports or portions thereof that are deemed to be furnished and not filed) filed with the SEC on June 13, 2016, July 8, 2016, July 27, 2016, August 2, 2016, August 5, 2016, September 15, 2016, September 23, 2016, November 29, 2016, February 10, 2017, March 24, 2017, April 3, 2017, April 17, 2017, April 25, 2017, and May 5, 2017; | |
| ● | Our joint proxy statement/prospectus filed with the SEC on March 7, 2017; and | |
| ● | The description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on January 27, 2000, including any amendment or reports filed for the purpose of updating such description. |
We also incorporate by reference all additional documents listed below and any future
filings madethat we file with the SEC by us under Sectionspursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act that are made after the date of 1934 until we sell allthe initial registration statement but prior to effectiveness of the registration statement and after the date of this prospectus but prior to the termination of the offering of the securities to
which this prospectus and any supplemental prospectuses relate (other than
filings or portions of filings that are furnished under applicable SEC rules
rather than filed):
- Annual report on Form 10-K for the fiscal year ended April 30,
2010, filed with the SEC on July 29, 2010.
- Definitive Proxy Statement pursuant to Section 14(a) of the
Exchange Act, filed with the SEC on August 17, 2010.
- Quarterly Reports on Form 10-Q for the quarters ended July 31,
2010, October 31, 2010 and January 31, 2011, filed with the SEC
on September 13, 2010, December 13, 2010 and March 16, 2011,
respectively.
- Current Reports on Form 8-K filed with the SEC on September 28,
2010, December 22, 2010 and February 17, 2011.
- The description of our common stock contained in our Registration
Statement on Form 8-A filed with the SEC on January 27, 2000.
You may also find additional information about us, including the documents
mentioned above, on our website at www.dataram.com. The information
included or linked to this website is not a part ofcovered by this prospectus. We hereby undertakeare not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not file in accordance with SEC rules.
You may request, and we will provide without charge to each person, including any
beneficial owner, to whom a copy of this prospectus is delivered, upon
written or oral request of any such person,you with, a copy of any andor all of the
reportsthese filings, at no cost, by calling us at (609) 799-0071 or documents that have been incorporated by reference in this
prospectus, other than exhibitswriting to such documents unless such exhibits have
been specifically incorporated by reference thereto. Requests for such
copies should be directed to our Investor Relations department,us at the following address:
Dataram Corporation
P.O. Box 7528
777 Alexander Road, Suite 100
Princeton, NJ 08543
(609) 799-0071
08540
| 25 |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Distribution.
The following table sets forth an estimate of the estimated costsfees and expenses ofrelating to the saleissuance and distribution of the securities being registered hereby, other than underwriting discounts and commissions, all of which are beingshall be borne by the Registrant. All of such fees and expenses, except for the SEC registration fee $2,322.00
Printing and engravingthe FINRA filing fee, are estimated:
| SEC registration fee | $ | 2,318 | ||
| FINRA filing fee | $ | * | ||
| Transfer agent’s fees and expenses | $ | * | ||
| Legal fees and expenses | $ | * | ||
| Printing fees and expenses | $ | * | ||
| Accounting fees and expenses | $ | * | ||
| Miscellaneous fees and expenses | $ | * | ||
| Total | $ | * |
*These fees $2,500.00
Legal feesare calculated based on the securities offered and expenses $75,000.00
Accounting feesthe number of issuances and expenses $5,000.00
Total $84,822.00
accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation and By-Laws include
provisions (i) to reduce the personal liabilityOfficers.
Section 78.7502(1) of the Company's directorsNevada Revised Statutes (“NRS”) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (except an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if such person: (i) is not liable for monetary damage resulting from breachesa breach of their fiduciary dutyduties that involved intentional misconduct, fraud or a knowing violation of law; or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 78.7502(2) of the NRS further provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including amounts paid in settlement and attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of the action or suit if such person: (i) is not liable for a breach of fiduciary duties that involved intentional misconduct, fraud or a knowing violation of law; or (ii) acted in good faith and in a manner that he or she reasonably believed to permitbe in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (1) and (2) of Section 78.7502, as described above, or in defense of any claim, issue or matter therein, the corporation shall indemnify him or her against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense.
| II-1 |
The Amended and Restated Bylaws of the Company to indemnify its directors and officersprovide that the Company shall, to the fullest extent permitted by New Jersey law, includingthe NRS, as now or hereafter in circumstances in which
indemnificationeffect, indemnify any person who was or is otherwise discretionary under New Jersey law. The
Company has obtained directors' and officers' liability insurance that
insures such persons against the costs of defense, settlement,a party or payment of
a judgment under certain circumstances.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
3(a) Restated Certificate of Incorporation. Incorporated by reference
from Exhibits to an Annual Report on Form 10-K for the year ended
April 30, 2008, filed with the Securities and Exchange Commission, SEC
file number 001-08266, on July 25, 2008.
3(b) By-Laws. Incorporated by reference from Exhibits to an Annual Report
on Form 10-K for the year ended April 30, 2008, filed with the
Securities and Exchange Commission, SEC file number 001-08266, on July
25, 2008.
4(a) Specimen certificate for shares of common stock.*
4(b) Form of Indenture.*
4(c) Form of Debt Security (included in Exhibit 4(b)).*
4(d) Form of Warrant Agreement.**
4(e) Form of Warrant.**
5.1 Opinion of Dillon, Bitar & Luther, L.L.C.*
23(a) Consent of J.H. Cohn LLP.*
23(b) Consent of Dillon, Bitar & Luther, L.L.C. (contained in Exhibit
5.1).*
24 Powers of Attorney (included on the signature pages to this Registration
Statement).*
25 Statement of Eligibility of Trustee for the Debt Securities.***
__________
* Filed herewith.
** To be filed, if necessary, on an exhibit to a post-effective amendment to
this registration statement or as on exhibit to a Current Report on Form 8-Kis threatened to be filedmade a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the registrantright of the Company, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with a specific offering, and
incorporated herein by reference.
*** To be filedthe action, suit or proceeding if he: (i) is not liable pursuant to NRS Section 305(b)(2)78.138; or (ii) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Trust Indenture Act.
(b) Financial Statement Schedules.
Not applicable.
Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Item 16. Exhibits.
| Exhibit Number | Description of Document | |
| 1.1* | Form of Underwriting Agreement | |
| 3.1 | Articles of Incorporation filed with the Secretary of State of the State of Nevada (incorporated by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 8, 2016) | |
| 3.2 | Certificate of Amendment to Articles of Incorporation dated July 6, 2016 (incorporated by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on July 8, 2016) | |
| 3.3 | Certificate of Designation of Preferences, Rights and Limitations of Series A Preferred Stock (incorporated by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 8, 2016) | |
| 3.4 | Certificate of Designations, Preferences and Rights of 0% Series B Convertible Preferred Stock (incorporated by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 21, 2016) | |
| 3.5 | Certificate of Designation of Rights, Powers, Preferences, Privileges and Restrictions of 0% Series D Convertible Preferred Stock (incorporated by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on August 5, 2016) | |
| 3.6 | Amended and Restated Bylaws (incorporated by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on February 23, 2016) | |
| 4.1 | Form of Senior Indenture | |
| 4.2 | Form of Subordinated Indenture | |
| 4.3* | Form of Senior Note | |
| 4.4* | Form of Subordinated Note | |
| 4.5* | Form of Warrant | |
| 4.6* | Form of Warrant Agreement | |
| 4.7* | Form of Unit Agreement | |
| 5.1* | Opinion of counsel as to the legality of the securities being registered | |
| 23.1* | Consent of counsel (included in Exhibit 5.1) | |
| 23.2 | Consent of Marcum LLP | |
| 23.3 | Consent of Anton & Chia, LLP | |
| 24.1 | Power of Attorney (included on signature pages to the registration statement) | |
| 25.1** | Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended |
| * | To the extent applicable, to be filed by an amendment or as an exhibit to a document filed under the Securities Exchange Act of 1934, as amended, and incorporated by reference herein. | |
| ** | To the extent applicable, to be filed under separate form type 305B2. |
| II-2 |
Item 17. Undertakings
Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post?effectivepost-effective amendment to this registration statement:
(i) To include any prospectus required by sectionSection 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of thisthe registration statement (or the most recent post?effectivepost-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in thisthe 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 a 20% change in the maximum aggregate offering price set forth in the "Calculation“Calculation of Registration Fee"Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided,however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post?effectivepost-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at thethat time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post?effectivepost-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposesthe purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by sectionSection 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.Provided,however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
| II-3 |
(5) If the Registrant is subject to Rule 430C, each prospectus
filed pursuant to Rule 424(b) as part of a registration
statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be a part of
and included in the registration statement as of the date it is
first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that
is part of the registration statement or made in a document or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or made in any such document
immediately prior to such date of first use.
(6) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424 under the
Securities Act of 1933;
424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant'sregistrant’s annual report pursuant to sectionSection 13(a) or sectionSection 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan'splan’s annual report pursuant to sectionSection 15(d) of the Securities Exchange Act of 1934), that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) With respect to any applicable warrant offering, the undersigned
registrant hereby undertakes to supplement the prospectus, after the
expiration of the subscription period, to set forth the results of
the subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities to be
purchased by the underwriters, and the terms of any subsequent
reoffering thereof. If any public offering by the underwriters is to
be made on terms differing from those set forth on the cover page of
the prospectus, a post-effective amendment will be filed to set
forth the terms of such offering.
(d) With respect to any indenture, the undersigned registrant hereby
undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of section
310 of the Trust Indenture Act ("Act") in accordance with the rules
and regulations prescribed by the Commission under section 305(b)(2)
of the Act.
(e) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions,
described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
| II-4 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
Dataram Corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statementRegistration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of West Windsor,Princeton, State of New Jersey, on the 31st day of March, 2011.
DATARAM CORPORATION
By: /s/ MARK E. MADDOCKS
______________________
Mark E. Maddocks
Vice President, Finance
POWER OF ATTORNEY
EachMay 10, 2017.
DATARAM CORPORATION (Registrant) | |
| /s/ David A. Moylan | |
| David A. Moylan | |
Chief Executive Officer (Principal Executive Officer) | |
| /s/ Anthony M. Lougee | |
| Anthony M. Lougee | |
Chief Financial Officer (Principal Financial and Accounting Officer) |
The Registrant and each person whose signature appears below constituteshereby appoint David A. Moylan and appoints and
hereby authorizes John H. Freeman and Mark E. Maddocks, severally, such
person's true and lawfulAnthony M. Lougee as their attorneys-in-fact, with full power of substitution, or resubstitution, forto execute in their names and on behalf of the Registrant and each such person, and in his name, place and stead, in any
and all capacities, to sign on such person's behalf, individually and in each capacity stated below, any and allone or more amendments including(including post-effective amendments and registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended and otherwise) to this Form S-3,Registration Statement as the attorney-in-fact acting on the premise shall from time to time deem appropriate and to file the same, with all exhibits
thereto, and other documents in connection therewith,any such amendment to this Registration Statement with the Commission
granting unto said attorneys-in-fact, full powerSecurities and authority to do and
perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this registration statementRegistration Statement has been signed by the following persons on behalf of
the registrant in the capacities indicated,and on March 31, 2011.
Date: March 31, 2011 By: /s/ ROGER C. CADY
------------------------------
Roger C. Cady, Chairman of the Board of Directors
Date: March 31, 2011 By: /s/ JOHN H. FREEMAN
------------------------------
John H. Freeman, President,
Chief Executive Officer and
Director
Date: March 31, 2011 By: /s/ THOMAS A. MAJEWSKI
-------------------------------
Thomas A. Majewski, Director
Date: March 31, 2011 By: /s/ ROSE ANN GIORDANO
-----------------------------
Rose Ann Giordano, Director
Date: March 31, 2011 By: /s/ MARK E. MADDOCKS
------------------------------
Mark E. Maddocks
Vice President, Finance
(Principal Financial & Accounting Officer)
dates indicated.
| Name | Title | Date | ||
| /s/ David A. Moylan | Chief Executive Officer and Director | May 10, 2017 | ||
| David A. Moylan | (Principal Executive Officer) | |||
| /s/ Anthony M. Lougee | Chief Financial Officer | May 10, 2017 | ||
| Anthony M. Lougee | (Principal Financial and Accounting Officer) | |||
| /s/ Edward M. Karr | Director | May 10, 2017 | ||
| Edward M. Karr | ||||
| /s/ Trent D. Davis | Director | May 10, 2017 | ||
| Trent D. Davis | ||||
| /s/ Michael E. Markulec | Director | May 10, 2017 | ||
| Michael E. Markulec |
| II-5 |