As filed withFiled With the Securities and Exchange Commission on MayJanuary 27, 20102015
Registration No. 333-333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________
WAFERGEN BIO-SYSTEMS, INC.
| (Exact(Exact name of registrant as specified in its charter) | |
__________________________
| Nevada | 3826 | 90-0416683 |
(State or other jurisdiction of | | (I.R.S. Employer |
incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.)Number) |
7400 Paseo Padre Parkway
Fremont, CA 94555
(510) 651-4450
| (Address,(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) | |
area code, of registrant’s principal executive offices)
Alnoor Shivji,__________________________
Ivan Trifunovich, President
WaferGen Bio-Systems, Inc. and Chief Executive Officer
7400 Paseo Padre Parkway
Fremont, CA 94555
(510) 651-4450
| (Name,(Name, address, including zip code, and telephone number, including area code, of agent for service) | |
area code, of agent for service)
Copies to:__________________________
John W. Campbell III, Esq.
John M. Rafferty, Esq.
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
(415) 268-7000Please send copies of all communications to:
Mark R. Busch
K&L Gates LLP
214 North Tryon Street, Suite 4700
Charlotte, NC 28202
(704) 331-7440
_____________________
Approximate Datedate of Commencementcommencement of Proposed Saleproposed sale to the Public:public:
From time to time after the effective date of this registration statement.Registration Statement as determined by market conditions.
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. þ
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If 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. ¨
Indicate by check mark whetherif the registrant is a large accelerated filer, an accelerated filer,file, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer ¨ | | Accelerated filer ¨ | |
Non-accelerated filer ¨ (Do not check if a smaller
reporting company)
| | Smaller reporting company þ |
| (do not check if a smaller reporting company) | |
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered | Amount to be registered (1)(2)(3) | Proposed maximum offering price per unit (3) | Proposed maximum aggregate offering price (3)(4)(5) | Amount of registration fee (3) |
| Common Stock, par value $.001 per share | | | | |
| Preferred Stock, par value $.001 per share | | | | |
| Debt securities | | | | |
| Warrants | | | | |
| Rights | | | | |
| Units (6) | | | | |
| Total | | | $25,000,000 | $1,782.50 |
Title of each class of securities to be registered(1) | Amount to be registered (1)(2)(3) | Proposed maximum offering price per unit (2)(3) | Proposed maximum aggregate offering price (3) | Amount of registration fee (4) |
| Common Stock | | | | |
| Preferred Stock | | | | |
| Debt Securities | | | | |
| Warrants | | | | |
| Units (5) | | | | |
| Total | | | $30,000,000 | $3,486.00(3) |
| | (1(1) | ) | Also includes anThis Registration Statement also covers (i) common stock, preferred stock and debt securities that may be issued upon exercise of warrants and (ii) such indeterminate aggregate principal amount and number of securities of each identified class of securities up to a proposed aggregate offering price of $25,000,000, which may be offered by the registrant from time to time in unspecified numbers and at indeterminate prices, and as may be issued upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including under any applicable anti-dilution provisions. ExceptIn addition, securities registered hereunder may be sold separately or as providedunits with other securities registered hereunder. |
| (2) | An indeterminate number of the securities is being registered as may at various times be issued at indeterminate prices, with an aggregate public offering price not to exceed $30,000,000 or the equivalent thereof in Rule 426(b) under Securities Act of 1933,one or more currencies or, if any debt securities are issued at any original issuance discount, such greater principal amount as shall result in no event will thean aggregate initial offering price of all types$30,000,000. |
| (3) | Not specified as to each class of securities issued by the Registrantto be registered pursuant to this registration statement exceed $25,000,000. |
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| (2 | ) | Pursuant to Rule 416 under the Securities Act of 1933, this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction. |
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| (3 | ) | Pursuant to General Instruction II.D of Form S-3 the table lists each of the classes of securities being registered and the aggregate proceeds to be raised, but does not specify by each class information as to the amount to be registered, proposed maximum offering price per unit, and proposed maximum aggregate offering price. |
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| (4 | ) | The proposed maximum aggregate offering price has been estimated solely to calculate the registration fee in accordance with Rule 457(o) under the Securities Act of 1933.Act. |
| | (4) | | Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act. |
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| (5 | ) | Includes consideration to be received by the registrant, if applicable, for registered securities that are issuable upon exercise, conversion or exchange of other registered securities. |
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| (6 | )(5) | Consisting of some or all of the securities listed above, in any combination, including common stock, preferred stock, debt securities and warrants. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAYJANUARY 27, 20102015
PROSPECTUS
$25,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
RightsUnits
Units__________________________
From timeThis prospectus relates to time, we may offer up to $25,000,000 of our common stock; preferred stock; debt securities; warrants or rights to purchase common stock, preferred stock, or debt securities, or any combination of these securities;warrants, and units consisting of common stock, preferred stock, debt securities orand warrants or any combination of these securities, that we may sell from time to time in one or more transactions. We may also offer common stock or preferred stock upon conversionofferings up to a total public offering price of debt securities; and common stock upon conversion$30,000,000 on terms to be determined at the time of preferred stock.
sale. We will provide specific terms of these offerings and securities in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement, and any documents incorporated by reference, may also add, update or change information contained in this prospectus. You should read this prospectus the applicableand any supplement carefully before you invest. This prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement any documents incorporated by reference and any related free writing prospectus carefully before buying any of the securities being offered.for those securities.
Our common stock is traded on the OTC Bulletin BoardNasdaq Capital Market under the symbol “WGBS.OB.“WGBS.” The applicable prospectus supplement will contain information, where applicable,As of January 23, 2015, the aggregate market value of our outstanding common stock held by non-affiliates was $13,132,747 based on 5,659,768 shares of outstanding common stock, of which 4,236,370 shares are held by non-affiliates, and a per share price of $3.10 which was the closing sale price of our common stock as to any other listing, if any,quoted on the OTC Bulletin Board orNasdaq Capital Market on January 23, 2015. We have not sold any securities marketpursuant to General Instruction I.B.6. of Form S-3 during the 12 calendar month period that ends on and includes the date hereof.
These securities may be sold directly by us, through dealers or other exchangeagents designated from time to time, to or through underwriters or through a combination of these methods. See “Plan of Distribution” in this prospectus. We may also describe the plan of distribution for any particular offering of these securities covered by thein any applicable prospectus supplement. The closing priceIf any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose their names and the nature of our stock on May 21, 2010 was $1.60.arrangements with them in a prospectus supplement. The net proceeds we expect to receive from any such sale will also be included in a prospectus supplement.
Investing in our securities involves certain risks. You should review carefully the risks and uncertainties described under the headingSee “Risk Factors” containedbeginning on page 2 of this prospectus and in the applicableany prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus.before you make your investment decision.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 20102015.
TABLE OF CONTENTS
| Page No. |
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About This Prospectus | |
Where You Can Find More Information | 2 |
Incorporation of Certain Information by Reference | 3 |
Forward-Looking Statements | 4 |
WaferGen Bio-systems, Inc. | 5 |
Risk Factors | 6 |
The Securities We May Offer | 7 |
Description of Capital Stock | 7 |
Description of Debt Securities | 11 |
Description of Warrants | 18 |
Description of Rights | 215 |
Description of Units | 22 |
Ratio of Earnings to Fixed Charges | 23 |
Use of Proceeds | 23 |
Plan of Distribution | 23 |
Legal Matters | 25 |
Experts | 25 |
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ABOUT THIS PROSPECTUSWHERE YOU CAN FIND MORE INFORMATIONWe file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission (the “SEC”). You can inspect and copy these reports, proxy statements and other information at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. The SEC also maintains a web site that contains reports, proxy and information statements and other information regarding issuers, such as WaferGen Bio-systems, Inc. (www.sec.gov). Our web site is located at www.wafergen.com. The information contained on our web site is not part of this prospectus.
This prospectus “incorporates by reference” certain information that we have filed with the SEC under the Securities Exchange Act of 1934. This means we are disclosing important information to you by referring you to those documents. We incorporate by reference the documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until the offering is terminated:
| · | our Annual Report on Form 10-K for the year ended December 31, 2013; |
| · | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2014, June 30, 2014 and September 30, 2014; |
| · | our current reports on Form 8-K or Form 8-K/A, as applicable, filed with the SEC on January 6, 2014, February 12, 2014, March 21, 2014, May 30, 2014, June 30, 2014, July 18, 2014, August 18, 2014 and November 18, 2014; and |
| · | the description of our common stock contained in our Registration Statement on Form 8-A, filed on August 19, 2014. |
You should rely only on the information incorporated by reference or provided in this prospectus. We have authorized no one to provide you with different information. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of this document. All documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus or after the date of the registration statement of which this prospectus forms a part and prior to the termination of the offering will be deemed to be incorporated in this prospectus by reference and will be a part of this prospectus from the date of the filing of the document. Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement that is modified or superseded will not constitute a part of this prospectus, except as modified or superseded.
We will provide, upon written or oral request, without charge to you, including any beneficial owner to whom this prospectus is delivered, a copy of any or all of the documents incorporated herein by reference other than the exhibits to those documents, unless the exhibits are specifically incorporated by reference into the information that this prospectus incorporates. You should direct a request for copies to us at WaferGen Bio-systems, Inc., 7400 Paseo Padre Parkway, Fremont, California 94555, Attention: Corporate Secretary, Telephone: (510) 651-4450.
FORWARD-LOOKING STATEMENTS Certain information set forth in this prospectus or incorporated by reference in this prospectus may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended
(the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are intended to be covered by the “safe harbor” created by those sections. Forward-looking statements, which are based on certain assumptions and describe our future plans, strategies and expectations, can generally be identified by the use of forward-looking terms such as “believe,” “expect,” “may,” “will,” “should,” “would,” “could,” “seek,” “intend,” “plan,” “estimate,” “goal,” “anticipate,” “project” or other comparable terms. Forward-looking statements involve inherent risks and uncertainties which could cause actual results to differ materially from those in the forward-looking statements, as a result of various factors including those risks and uncertainties included in this prospectus under the caption “Risk Factors,” and those risks and uncertainties described in the documents incorporated by reference into this prospectus. We urge you to consider those risks and uncertainties in evaluating our forward-looking statements. All subsequent written and oral forward-looking statements attributable to us or to persons acting on our behalf are expressly qualified in their entirety by the applicable cautionary statements. We further caution readers not to place undue reliance upon any such forward-looking statements, which speak only as of the date made. Except as otherwise required by the federal securities laws, we disclaim any obligation or undertaking to publicly release any updates or revisions to any forward-looking statement contained herein or in the accompanying prospectus (or elsewhere) to reflect any change in our expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based.
This document is called a prospectus and is part of a registration statement on Form S-3 that we have filed with the Securities and Exchange Commission (“SEC”), usingSEC utilizing a “shelf” registration process. Under this shelf registration process, we may from time to time, offer sharessell any combination of our common stock and preferred stock, various series of debt securities or warrants or rights to purchase any of such securities, either individually ordescribed in units,this prospectus in one or more offerings, in amounts we will determine from time to time, up to a total dollar amount of $25,000,000.
offerings. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series ofsell securities, described in this prospectus, we will provide a prospectus supplement or information that is incorporated by reference into this prospectus, containing morewill contain specific information about the terms of the securities that we are offering. being offered.
We may also authorize oneadd or more free writing prospectuses to be provided to you that may contain material information relating to these offerings and securities. This prospectus, together with applicable prospectus supplements, any information incorporated by reference and any related free writing prospectuses, includes all material information relating to these offerings and securities. We may also add, update or changemodify in thea prospectus supplement any of the inform ationinformation contained in this prospectus or in the documents that we have incorporated by reference into this prospectus including without limitation, a discussion of any risk factors or other special considerations that apply to these offerings or securities or the specific plan of distribution.by reference. If there is any inconsistency between the information in this prospectus and a prospectus supplement, or information incorporated by reference having a later date, you should rely on the information in that prospectus supplement or incorporated information having a later date. We urge you tosupplement. You should read carefullyboth this prospectus and any applicable prospectus supplement and any related free writing prospectus, together with theadditional information incorporated herein by reference as described above under the heading “Where You Can Find More Information,Information.” before buying
When acquiring any of the securities being offered.
Youdiscussed in this prospectus, you should rely only on the information we have provided or incorporated by reference in this prospectus any applicableand the prospectus supplement, andincluding the information incorporated by reference. Neither we, nor any related free writing prospectus. Weunderwriters or agents, have not authorized anyone to provide you with different information. No dealer, salesperson or other personWe are not offering the securities in any state where such an offer is authorized to give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus.
Neither the delivery of this prospectus nor any sale made under it implies that there has been no change in our affairs or that the information in this prospectus is correct as of any date after the date of this prospectus.prohibited. You should not assume that the information in this prospectus, any applicable prospectus supplement, or any related free writing prospectus is accurate only as of the date on the front of the document and that any information we have incorporated by reference, is accurate only as oftruthful or complete at any date other than the date ofmentioned on the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copiescover page of those documents as described below under “Wheredocuments. You Can Find More Information.”should also carefully review the section entitled “Risk Factors”, which highlights certain risks associated with an investment in our securities, to determine whether an investment in our securities is appropriate for you.
When usedReferences in this prospectus to “WaferGen”, the terms “WBSI,” the “Company,” “we,”“Company”, “we”, “us” and “our” and “us” referare to WaferGen Bio-systems, Inc., a Nevada corporation, and its wholly owned subsidiary, Wafergen, Inc., a Delaware corporation, taken as a whole, and also refer to the operations of Wafergen, Inc. prior to the May 31, 2007 merger, discussed below, which resulted in Wafergen, Inc. becoming a wholly owned subsidiary of ours. Hereinafter, Wafergen, Inc. is sometimes referred to as “WaferGen.”subsidiaries.
This prospectus and the information incorporated herein by reference includes trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus, any applicable prospectus supplement or any related free writing prospectus are the property of their respective owners.
WHERE YOU CAN FIND MORE INFORMATIONRISK FACTORS
We have filed withInvesting in our securities involves risk. See the SEC a registration statement on Form S-3 under the Securities Act of 1933, as amended (“Securities Act”), with respect to the securities covered by this prospectus. This prospectus, which is a part of the registration statement, does not contain all of the information set forthrisk factors described in the registration statement or the exhibits and schedules filed therewith. For further information with respect to us and the securities covered by this prospectus, please see the registration statement and the exhibits filed with the registration statement. A copy of the registration statement and the exhibits filed with the registration statement may be inspected without charge at the Public Reference Room maintained by the SEC, located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the Public Reference Room. The SEC also maintains an Internet website that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. The address of the website is http://www.sec.gov.
We are subject to the information and periodic reporting requirements of the Securities Exchange Act of 1934, as amended (“Exchange Act”), and, in accordance therewith, we file periodic reports, proxy statements and other information with the SEC. Such periodic reports, proxy statements and other information are available for inspection and copying at the Public Reference Room and website of the SEC referred to above. We maintain a website at http://www.wafergen.com. You may access our Annual ReportsReport on Form 10-K for our most recent fiscal year (together with any material changes thereto contained in subsequent filed Quarterly Reports on Form 10-Q, Current Reports on Form 8-K10-Q) and amendments to those reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Actcontained in our other filings with the SEC, free of charge at our website as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. Our websitewhich are incorporated by reference in this prospectus and the information contained on that site, or connected to that site, are not incorporated into and are not a part of this prospectus.any accompanying prospectus supplement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC andprospectus supplement applicable law permits us to “incorporate by reference” into this prospectus informationeach type or series of securities we offer may contain a discussion of risks applicable to the particular types of securities that we have or mayare offering under that prospectus supplement. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the caption “Risk Factors” in the future fileapplicable prospectus supplement, together with or furnish to the SEC. This means that we can disclose important information by referring you to those documents. You should read carefully the information incorporated herein by reference because it is an important part of this prospectus. We incorporate by reference into this prospectus the following documents or information filed with the SEC (other than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules):
| · | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed with the SEC on March 22, 2010; |
| · | An amendment to our Annual Report on Form 10-K/A for the year ended December 31, 2009, filed with the SEC on April 30, 2010; |
| · | An amendment to our Annual Report on Form 10-K/A for the year ended December 31, 2009, filed with the SEC on May 12, 2010; |
| · | Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, filed with the SEC on May 17, 2010; |
| · | Our Current Reports on Forms 8-K, filed with the SEC on May 12, 2010 and May 17, 2010; |
| · | All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to above; and |
| · | The description of our capital stock contained in the Registration Statement on Form 8-A, filed with the SEC on May 21, 2008, including any amendment or report filed for the purposes of updating such description. |
Additionally, all documents filed by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after: (i) the date of the initial registration statement and prior to effectiveness of the registration statement; and (ii) the date of this prospectus and before the termination or completion of this offering shall be deemed to be incorporated by reference into this prospectus from the respective dates of filing of such documents. Any information that we subsequently file with the SEC that is incorporated by reference as described above will automatically update and supersede any previous information that is part of this prospectus.
Upon written or oral request, we will provide you without charge, a copy of any or all of the documents incorporated by reference, other than exhibits to those documents unlessinformation contained in the exhibits are specificallyprospectus supplement or appearing or incorporated by reference in this prospectus. These risks could materially affect our business, results of operations or financial condition and cause the documents. Please send requestsvalue of our securities to WaferGen Bio-systems, Inc., Attn: Investor Relations, 7400 Paseo Padre Parkway, Fremont, CA 94555,decline. You could lose all or call (510) 651-4450.part of your investment.
FORWARD-LOOKING STATEMENTSTHE COMPANY
This prospectus and any accompanying prospectus supplement (including any document incorporated by reference herein or therein) include statements that are “forward-looking statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act. All statements included in this prospectus and any accompanying prospectus supplement (including any document incorporated by reference herein or therein), other than those that are historical, are forward-looking statements. Words such as “expect,” “believe,” “anticipate,” “outlook,” “could,” “target,” “project,” “intend,” “plan,” “seek,” “estimate,” “should,” “may,” “assume” and 220;continue,” as well as variations of such words and similar expressions, also identify forward-looking statements. Forward-looking statements in this prospectus include, without limitation, statements regarding our intended uses of the proceeds of the securities offered hereby.
Forward-looking statements involve certain risks and uncertainties, many of which are beyond our control. If any of those risks and uncertainties materialize, actual results could differ materially from those discussed in any such forward-looking statement. Among the factors that could cause actual results to differ materially from those discussed in forward-looking statements are those discussed under the heading “Risk Factors” and in other sections of (i) our Annual Report on Form 10-K for the year ended December 31, 2009, (ii) our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, (iii) our other reports filed from time to time with the SEC that are incorporated by reference into this prospectus and any prospectus supplement, or (iv) any prospectus supplement to this prospectus. See “Whe re You Can Find More Information” and “Incorporation of Certain Information by Reference” for information about how to obtain copies of those documents.
All forward-looking statements in this prospectus, any prospectus supplement and the documents incorporated by reference herein or therein are made only as of the date of the document in which they are contained, based on information available to us as of the date of that document, andSince we caution you not to place undue reliance on forward-looking statements in light of the risks and uncertainties associated with them. Except as required by law, we undertake no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise.
WAFERGEN BIO-SYSTEMS, INC.
Since beginningcommenced operations in 2003, we have been engaged in the development of systems for gene expression quantification, genotyping and stem cell research. Since 2008, our primary focus has been on the development, manufacture and marketing of laboratory analytical instrumentsour SmartChip System, a genetic analysis platform used for gene expression, genotypingprofiling and stem-cell research forvalidating molecular biomarkers in the life sciences and pharmaceutical drug discovery industries. Since the beginning of 2014, following an acquisition, we now also sell the Apollo 324™ product line used in library preparation for next-generation sequencing (“NGS”). Our combined product lines now offer one-stop shopping for NGS sample preparation and validation solutions that enable NGS instruments (such as MiSeqTM from Illumina and PGMTM from Thermo Fisher) to produce better results in terms of accuracy, while at the same time simplifying the workflow in a cost efficient manner.
Our SmartChip products are aimed at professionalsresearchers who perform genetic analysis, and cell biology, primarily at pharmaceutical and biotech companies, academic and private research centers and diagnostics companies involved in biomarker discovery and genetic research. ThroughMany scientists believe that much of the work to seek new therapeutic solutions will be directed at understanding the expression level of key relevant segments of DNA (i.e. genes and other regulatory elements), as well as the changes in their sequence (i.e. mutations such as single nucleotide polymorphisms (“SNPs”)). Gene expression is fundamental to the understanding of many disease processes and hence, drug efficacy. For example, in the field of oncology (cancer treatment), greater understanding of gene expression in certain types of cancerous cells has led to the discovery of specific disease biomarkers that will allow clinicians to provide more accurate diagnosis, prognosis and treatment options for their patients. Increasingly, researchers are focusing their attention on studying physiological phenomena at the molecular level and are consequently committing their research budgets to acquiring research tools that help them develop personalized therapies.
We are primarily focused on marketing a flexible, open format genetic analysis system, the WaferGen SmartChip System, which provides a range of high throughput capabilities including mRNA, microRNA and lncRNA expression level measurement, as well as SNP genotyping. In August 2010, we formally launched our first generation SmartChip Real Time Polymerase Chain Reaction5K System, which was an innovative real-time polymerase chain reaction (“real-time PCR”) tool enabling scientists to study thousands of genes simultaneously clustered in gene specific pathways. The results of such studies are potentially leading to the discovery and validation of clinically relevant disease signatures. We believe that the SmartChip System”)System is well suited for the large and SmartSlide™ Micro-incubationgrowing genomics markets, including for researchers seeking to confirm and expand on discoveries made with the growing use of NGS. In July 2012, we launched the SmartChip MyDesign System, (“SmartSlide™ System”) products,which is the second-generation instrument with significantly upgraded capabilities. First, the new system allows customers to dispense their own assays into a SmartChip, which gives them much greater flexibility and faster experiment turnaround time. Second, we are aiding professionals in re-defining performance standards with significanthave enabled SNP genotyping on the SmartChip by validating appropriate chemistries and supplying the requisite software. The SmartChip System’s high density, nanoliter-scale format can provide throughput levels that facilitate the development of life science clinical research solutions at a fraction of the time and cost savingscurrently possible with existing competing systems.
Most recently, our R&D efforts have been concentrated on the commercialization of the SmartChip Target Enrichment (“TE”) System. This new product is designed to perform a critical sample preparation step prior to targeted NGS. The targeted sequencing is aimed at deciphering the nucleic acid sequence of a certain
portion of the genome (the targets), for example a set of genes of interest, as opposed to the whole genome. In order to limit the sequencing to the targets of interest, scientists are using various techniques including PCR to treat the nucleic acid samples prior to sequencing. WaferGen is using its SmartChip consumable to conduct massively parallel individual PCR reactions for TE. This approach offers certain advantages over existing chemistries and platforms. Although these advantages could help us successfully compete in the fieldshigh potential emerging market for clinical sequencing, we face considerable competition, including the competing sample preparation kits from NGS instrument manufacturers such as Illumina, Inc. (“Illumina”) and Life Technologies Corporation (“LIFE,” now a division of pharmacogenomics and toxicogenomi cs.Thermo Fisher).
WaferGenWe employ a business model that primarily generates revenue from the sale of instruments (i.e. the SmartChip System or Apollo 324TM instrument) and a recurring revenue stream from the sale of consumables (i.e. the SmartChip Panels or PrepXTM reagents), similar to the “razor and razor blade” business model.
Our revenue is subject to fluctuations due to the timing of sales of high-value products and service projects, the impact of seasonal spending patterns, the timing and size of research projects our customers perform, changes in overall spending levels in the life science industry and other unpredictable factors that may affect customer ordering patterns. Any significant delays in the commercial launch or any lack or delay of commercial acceptance of new products, unfavorable sales trends in existing product lines, or impacts from the other factors mentioned above, could adversely affect our revenue growth or cause a sequential decline in quarterly revenue. Due to the possibility of fluctuations in our revenue and net income or loss, we believe that quarterly comparisons of operating results are not a good indication of future performance.
Since inception, we have incurred substantial operating losses. As of September 30, 2014, our accumulated deficit was $88,267,731. Losses have principally occurred as a result of the substantial resources required for the research, development and manufacturing start-up costs required to commercialize our initial products. We expect to continue to incur substantial costs for research and development activities for at least the next year as we expand and improve our core technology and its applications in the life science research market.
Nasdaq Listing
Since August 22, 2014, our common stock has been listed on the Nasdaq Capital Market under the symbol “WGBS.” We do not intend to apply for listing of our warrants on any securities exchange or other trading system.
Corporate Information
Wafergen, Inc. was incorporated in Delaware on October 22, 2002. On May 31, 2007, Wafergen, Inc. was acquired by WaferGen Bio-systems, Inc., a Nevada corporation. In the transactions, Wafergen, Inc. merged with a subsidiary of WBSI,WaferGen Bio-systems, Inc. and became a wholly owned subsidiary of WBSI, which is continuing the business of WaferGen as a publicly traded company. In this prospectus, we refer to the merger and reorganization transactions consummated on May 31, 2007 as the “Merger.” WBSIBio-systems, Inc. WaferGen Bio-systems, Inc. was incorporated under the laws of the State of Nevada on August 4, 2005, under the name Scuttlebutt Yachts, Inc. and changed its name to, subsequently renamed La Burbuja Cafe, Inc. on June 20, 2006, and to WaferGen Bio-systems, Inc. on January 31, 2007, in anticipation of the Mergermerger with WaferGen.Wafergen, Inc. We also have a subsidiary in Luxembourg. Our principal executive offices are located at 7400 Paseo Padre Parkway, Fremont, California 94555. The telephone number at our principal executive offic esoffices is (510) 651-4450. Our website address is www.wafergen.com. Information contained on our website is not deemed part of this prospectus.prospectus, other than our Code of Business Conduct and Ethics, which is incorporated by reference.
We currently intend to use the estimated net proceeds from the sale of these securities for general corporate and working capital purposes, including to fund strategic initiatives that we may undertake from time to
Investing in our securities involves significant risks. You should review carefullytime and for product development. We have not yet determined the risks and uncertainties described under the heading “Risk Factors” contained in, or incorporated into, the applicable prospectus supplement andamount of net proceeds to be used specifically for any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference herein or therein. Each of the referenced risksforegoing purposes. Accordingly, our management will have significant discretion and uncertainties could adversely affect our business, operating resultsflexibility in applying the net proceeds from the sale of these securities. Our plans to use the estimated net proceeds from the sale of these securities may change, and financial condition, as well as adversely affect the value of an investmentif they do, we will update this information in our securities. Additional risks not known to us or that we believe are immaterial may also adversely affect our business, operating results and financial condition and the value of an investment in our securities.a prospectus supplement.
THEDESCRIPTION OF SECURITIES WE MAY OFFER
We may offer,issue from time to time, shares of our common stock and preferred stock, various series of debt securitiesin one or warrants or rights to purchase any of such securities, either individually or in units, in amounts we will determine from time to time, with a total value of up to $25,000,000 under this prospectus at prices and on terms to be determined by market conditions atmore offerings, the time of offering. This prospectus provides you with a general description of the securities we may offer. See “Description of Capital Stock,” “Description of Debt Securities,” Description of Warrants,” “Description of Rights,” and “Description of Units” below. Each time we offer a type or series of securities, we will provide a prospectus supplement that will describe the specific amounts, prices and othe r important terms of the securities, including, to the extent applicable:following securities:
| | · | designation or classification;debt securities, which may include senior debt securities, subordinated debt securities and senior subordinated debt securities; |
| | · | aggregate principal amount or aggregate offering price;shares of preferred stock; |
| | · | maturity, if applicable;shares of common stock; |
| | · | rateswarrants for the purchase of debt securities, preferred stock or common stock; and times of payment of interest or dividends, if any; |
| | · | redemption, conversionunits consisting of common stock, preferred stock or sinking fund terms, if any;warrants or any combination of these securities. |
| · | voting or other rights, if any; |
| · | conversion prices, if any; and |
| · | important federal income tax considerations. |
TheSet forth below is a description of the common stock and preferred stock that may be offered under this prospectus. We will set forth in the applicable prospectus supplement and any related free writing prospectus also may supplement, or, as applicable, add, update or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the timedescription of the effectiveness of the registration statement of whichdebt securities and warrants that may be offered under this prospectus is a part.
prospectus. The terms of the offering of our common stock, preferred stock or any particular offering,such other securities, the initial offering price and the net proceeds to us will be contained in the prospectus supplement, information incorporated by reference or free writing prospectusand other offering material, relating to such offering.offer.
We may sell the securities being offered pursuant to this prospectus directly to purchasers, to or through underwriters, through dealers or agents, or through a combination of such methods. The prospectus supplement with respect to the securities being offered will set forth the terms of the offering of those securities, including the names of any such underwriters, dealers or agents, the purchase price, the net proceeds to us, any underwriting discounts and other items constituting underwriters' compensation, the initial public offering price, any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which such securities may be listed.
DESCRIPTION OF CAPITAL STOCKDEBT SECURITIES WE MAY OFFER
Authorized Capital Stock
Our articlesWe may sell the securities being offered pursuant to this prospectus directly to purchasers, to or through underwriters, through dealers or agents, or through a combination of incorporation, as amended and restated, authorized 310,000,000 shares of capital stock, par value $0.001 per share, of which 300,000,000 are shares of common stock and 10,000,000 are shares of “blank-check” preferred stock, par value $0.001 per share.
Common Stock
Dividends
Subjectsuch methods. The prospectus supplement with respect to provisionsthe securities being offered will set forth the terms of the Nevada Revised Statutes (“NRS”),offering of those securities, including the names of the underwriters, dealers or agents, if any, the purchase price, the net proceeds to us, any underwriting discounts and other items constituting underwriters’ compensation, the initial public offering price, any discounts or concessions allowed or reallowed or paid to dealers and any future rightssecurities exchanges on which such securities may be granted to the holders of any series of our preferred stock, dividends are paid on our common stock when and as declared by our board of directors out of funds legally available for dividend payments.listed.
Voting rights
Each holder of shares of our common stock is entitled to one vote per share on all matters submitted to a vote of our common stockholders. Holders of our common stock are not entitled to cumulative voting rights.
Liquidation
If we are liquidated, holders of our common stock are entitled to receive all remaining assets available for distribution to stockholders after satisfaction of our liabilities and the preferential rights of any of our preferred stock that may be outstanding at that time.
Preemptive rights
The holdersdebt securities that we may issue will constitute debentures, notes, bonds or other evidences of our common stock do not have any preemptive, conversion or redemption rights by virtueindebtedness of their ownership of the common stock.
Preferred Stock
Shares of our preferred stock mayWaferGen, to be issued in one or more series, which may include senior debt securities, subordinated debt securities and our boardsenior subordinated debt securities. The particular terms of directors is authorized to determine the designation and to fix the number of shares of each series. Our board of directors is further authorized to fix and determine the dividend rate, premium or redemption rates, conversion rights, voting rights, preferences, privileges, restrictions and other variations granted to or imposed upon any wholly unissued series of our preferred stock.debt securities we offer, including the extent to which the general terms set forth below may be applicable to a particular series, will be described in a prospectus supplement relating to such series.
PriorDebt securities that we may issue will be issued under an indenture between us and a trustee qualified to act as such under the Trust Indenture Act of 1939. We have filed the form of the indenture as an exhibit to the registration statement of which this prospectus is a part. When we refer to the “indenture” in this prospectus, we
are referring to the indenture under which your debt securities are issued as supplemented by any supplemental indenture applicable to your debt securities. We will provide the name of the trustee in any prospectus supplement related to the issuance of sharesdebt securities, and we will also provide certain other information related to the trustee, including describing any relationship we have with the trustee, in such prospectus supplement.
THE FOLLOWING DESCRIPTION IS A SUMMARY OF THE MATERIAL PROVISIONS OF THE INDENTURE. IT DOES NOT RESTATE THE INDENTURE IN ITS ENTIRETY. THE INDENTURE IS GOVERNED BY THE TRUST INDENTURE ACT OF 1939. THE TERMS OF THE DEBT SECURITIES INCLUDE THOSE STATED IN THE INDENTURE AND THOSE MADE PART OF THE INDENTURE BY REFERENCE TO THE TRUST INDENTURE ACT. WE URGE YOU TO READ THE INDENTURE BECAUSE IT, AND NOT THIS DESCRIPTION, DEFINES YOUR RIGHTS AS A HOLDER OF THE DEBT SECURITIES.
Information You Will Find In The Prospectus Supplement
The indenture provides that we may issue debt securities from time to time in one or more series and that we may denominate the debt securities and make them payable in foreign currencies. The indenture does not limit the aggregate principal amount of debt securities that can be issued thereunder. The prospectus supplement for a series of preferred stock, our board of directorsdebt securities will adopt resolutions and file a certificate of designation withprovide information relating to the SEC. The certificate of designation will fix for each series the designation and number of shares and the rights, preferences, privileges and restrictionsterms of the shares including, but not limited to, the following:series of debt securities being offered, which may include:
| | · | the maximum numbertitle and denominations of shares in the series anddebt securities of the distinctive designation;series; |
| | · | voting rights, if any limit on the aggregate principal amount of the preferred stock;debt securities of the series; |
| | · | the dividend rate(s), period(s) and/date or payment date(s) or method(s) of calculation applicabledates on which the principal and premium, if any, with respect to the preferred stock;debt securities of the series are payable or the method of determination thereof; |
| · | whether dividends are cumulative or non-cumulative, and if cumulative, the date from which dividends on the preferred stock will accumulate; |
| | · | the relative ranking and preferencesrate or rates, which may be fixed or variable, at which the debt securities of the preferred stock as to dividend rights and rights uponseries shall bear interest, if any, or the liquidation, dissolution method of calculating and/or winding upresetting such rate or rates of our affairs;interest; |
| · | the dates from which such interest shall accrue or the method by which such dates shall be determined and the duration of the extensions and the basis upon which interest shall be calculated; |
| · | the interest payment dates for the series of debt securities or the method by which such dates will be determined, the terms of any deferral of interest and any right of ours to extend the interest payments periods; |
| · | the place or places where the principal and interest on the series of debt securities will be payable; |
| | · | the terms and conditions if applicable, upon which debt securities of the preferred stock willseries may be convertible into common stock, another series of preferred stock,redeemed, in whole or any other class of securities being registered hereby, including the conversion price (or manner of calculation) and conversion period;in part, at our option or otherwise; |
| · | our obligation, if any, to redeem, purchase, or repay debt securities of the series pursuant to any sinking fund or other specified event or at the option of the holders and the terms of any such redemption, purchase, or repayment; |
| | · | the provision for redemption,terms, if applicable,any, upon which the debt securities of the preferred stock;series may be convertible into or exchanged for other securities, including, among other things, the initial conversion or exchange price or rate and the conversion or exchange period; |
| · | if the amount of principal, premium, if any, or interest with respect to the debt securities of the series may be determined with reference to an index or formula, the manner in which such amounts will be determined; |
| · | if any payments on the debt securities of the series are to be made in a currency or currencies (or by reference to an index or formula) other than that in which such securities are denominated or designated to be payable, the currency or currencies (or index or formula) in which such payments are to be made and the terms and conditions of such payments; |
| · | any changes or additions to the provisions of the indenture dealing with defeasance, including any additional covenants that may be subject to our covenant defeasance option; |
| | · | the provisions for a sinking fund,currency or currencies in which payment of the principal and premium, if any, forand interest with respect to debt securities of the preferred stock;series will be payable, or in which the debt securities of the series shall be denominated, and the particular provisions applicable thereto in accordance with the indenture; |
| | · | liquidation preferences;the portion of the principal amount of debt securities of the series which will be payable upon declaration of acceleration or provable in bankruptcy or the method by which such portion or amount shall be determined; |
| · | whether the debt securities of the series will be secured or guaranteed and, if so, on what terms; |
| · | any addition to or change in the events of default with respect to the debt securities of the series; |
| · | the identity of any trustees, authenticating or paying agents, transfer agents or registrars; |
| · | the applicability of, and any addition to or change in, the covenants currently set forth in the indenture; |
| · | the subordination, ranking or priority, if any, of the debt securities of the series and terms of the subordination; |
| · | any other terms of the debt securities of the series which are not prohibited by the indenture; and |
| · | whether securities of the series shall be issuable as registered securities or bearer securities (with or without interest coupons), and any restrictions applicable to the offering, sale or delivery of such bearer securities and the terms upon which such bearer securities of a series may be exchanged for registered securities, and vice versa. |
Holders of debt securities may present debt securities for exchange in the manner, at the places, and subject to the restrictions set forth in the debt securities, the indenture, and the prospectus supplement. We will provide these services without charge, other than any tax or other governmental charge payable in connection therewith, but subject to the limitations provided in the indenture, any board resolution establishing such debt securities and any applicable indenture supplement. Debt securities in bearer form and the coupons, if any, appertaining thereto will be transferable by delivery.
Senior Debt
We may issue senior debt securities under the indenture and any coupons that will constitute part of our senior debt. Unless otherwise set forth in the applicable indenture supplement and described in a prospectus supplement, the senior debt securities will be senior unsecured obligations, ranking equally with all of our existing
and future senior unsecured debt. The senior debt securities will be senior to all of our subordinated debt and junior to any secured debt we may incur as to the assets securing such debt.
Subordinated Debt
We may issue subordinated debt securities under the indenture and any coupons that will constitute part of such subordinated debt. These subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner set forth in the indenture and any applicable indenture supplement, to all of our senior indebtedness.
If this prospectus is being delivered in connection with a series of subordinated debt securities, the accompanying prospectus supplement or the information incorporated by reference will set forth the approximate amount of senior indebtedness outstanding as of the end of the most recent fiscal quarter.
Senior Subordinated Debt
We may issue senior subordinated debt securities under the indenture and any coupons that will constitute part of our senior subordinated debt. These senior subordinated debt securities will be, to the extent and in the manner set forth in the applicable indenture supplement, subordinate and junior in right of payment to all of our “senior indebtedness” and senior to our other subordinated debt. See the discussions above under “—Senior Debt” and “—Subordinated Debt” for a more detailed explanation of our senior and subordinated indebtedness.
Interest Rate
Debt securities that bear interest will do so at a fixed rate or a floating rate. We may sell, at a discount below the stated principal amount, any debt securities which bear no interest or which bear interest at a rate that at the time of issuance is below the prevailing market rate. The relevant prospectus supplement will describe the special United States federal income tax considerations applicable to:
| · | any discounted debt securities; and |
| · | any debt securities issued at par which are treated as having been issued at a discount for United States federal income tax purposes. |
Registered Global Securities
We may issue registered debt securities of a series in the form of one or more fully registered global securities. We will deposit the registered global security with a depository or with a nominee for a depository identified in the prospectus supplement relating to such series. The global security or global securities will represent and will be in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding registered debt securities of the series to be represented by the registered global security or securities. Unless it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred, except as a whole in three cases:
| · | by the depository for the registered global security to a nominee of the depository; |
| · | by a nominee of the depository to the depository or another nominee of the depository; and |
| · | by the depository or any nominee to a successor of the depository or a nominee of the successor. |
The prospectus supplement relating to a series of debt securities will describe the specific terms of the depository arrangement concerning any portion of that series of debt securities to be represented by a registered global security. We anticipate that the following provisions will generally apply to all depository arrangements.
Upon the issuance of a registered global security, the depository will credit, on its book-entry registration and transfer system, the principal amounts of the debt securities represented by the registered global security to the accounts of persons that have accounts with the depository. These persons are referred to as “participants.” Any underwriters, agents or debtors participating in the distribution of debt securities represented by the registered global security will designate the accounts to be credited. Only participants or persons that hold interests through participants will be able to beneficially own interests in a registered global security. The depository for a global security will maintain records of beneficial ownership interests in a registered global security for participants. Participants or persons that hold through participants will maintain records of beneficial ownership interests in a global security for persons other than participants. These records will be the only means to transfer beneficial ownership in a registered global security.
The laws of some states may require that specified purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in global securities.
So long as the depository, or its nominee, is the registered owner of a registered global security, the depository or its nominee will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under the indenture. Except as set forth below, owners of beneficial interests in a registered global security:
| · | may not have the debt securities represented by a registered global security registered in their names; |
| · | will not receive or be entitled to receive physical delivery of debt securities represented by a registered global security in definitive form; and |
| · | will not be considered the owners or holders of debt securities represented by a registered global security under the indenture. |
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depository for the registered global security and, if the person is not a participant, on the procedures of the participant through which the person owns its interests, to exercise any rights of a holder under the indenture applicable to the registered global security.
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 which a holder is entitled to give or take under the indenture, the depository for the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action, and the participants would authorize beneficial owners owning through the participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
Payment of Interest on and Principal of Registered Global Securities
We will make principal, premium, if any, and interest payments on debt securities represented by a registered global security registered in the name of a depository or its nominee to the depository or its nominee as the registered owner of the registered global security. None of WaferGen, the trustee, or any paying agent for debt securities represented by a registered global security will have any responsibility or liability for:
| · | any aspect of the records relating to, or payments made on account of, beneficial ownership interests in such registered global security; |
| · | maintaining, supervising, or reviewing any records relating to beneficial ownership interests; |
| · | the payments to beneficial owners of the global security of amounts paid to the depository or its nominee; or |
| | · | any limitationsother matter relating to the actions and practices of the depository, its nominee or any of its participants. |
We expect that the depository, upon receipt of any payment of principal, premium or interest in respect of the global security, will immediately credit participants’ accounts with payments in amounts proportionate to their beneficial interests in the principal amount of a registered global security as shown on the depository’s records. 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 instructions and customary practices. This is currently the case with the securities held for the accounts of customers registered in “street name.” Such payments will be the responsibility of participants.
Exchange of Registered Global Securities
We may issue debt securities in definitive form in exchange for the registered global security if both of the following occur:
| · | the depository for any debt securities represented by a registered global security is at any time unwilling or unable to continue as depository or ceases to be a clearing agency registered under the Exchange Act; and |
| · | we do not appoint a successor depository within 90 days. |
In addition, we may, at any time, determine not to have any of the debt securities of a series represented by one or more registered global securities. In this event, we will issue debt securities of that series in definitive form in exchange for all of the registered global security or securities representing those debt securities.
Covenants by WaferGen
The indenture includes covenants by us, including among other things that we will make all payments of principal and interest at the times and places required. The supplemental indenture establishing each series of debt securities may contain additional covenants, including covenants which could restrict our right to incur additional indebtedness or liens and to take certain actions with respect to our businesses and assets.
Events of Default
Unless otherwise indicated in the applicable prospectus supplement, the following will be events of default under the indenture with respect to each series of debt securities issued under the indenture:
| · | failure to pay when due any interest on any debt security of that series, continued for 30 days; |
| · | failure to pay when due the issuanceprincipal of, or premium, if any, on, any debt security of that series; |
| · | default in the payment of any classsinking fund installment with respect to any debt security of that series when due and payable; |
| · | failure to perform any other covenant or agreement of ours under the indenture or the supplemental indenture with respect to that series or the debt securities of preferred stock ranking seniorthat series, continued for 90 days after written notice to us by the trustee or on a parity withholders of at least 25% in aggregate principal amount of the classoutstanding debt securities of the series to which the covenant or seriesagreement relates; |
| · | certain events of preferred stock as to dividend rights and rights upon liquidation, dissolutionbankruptcy, insolvency or winding up of our affairs;similar proceedings affecting us; and |
| | · | any other specific terms, preferences, rights,event of default specified in any supplemental indenture under which such series of debt securities is issued. |
Except as to certain events of bankruptcy, insolvency or similar proceedings affecting us and except as provided in the applicable prospectus supplement, if any event of default shall occur and be continuing with respect to any series of debt securities under the indenture, either the trustee or the holders of at least 25% in aggregate principal amount of outstanding debt securities of such series may accelerate the maturity of all debt securities of such series. Upon certain events of bankruptcy, insolvency or similar proceedings affecting us, the principal, premium, if any, and interest on all debt securities of each series shall be immediately due and payable.
After any such acceleration, but before a judgment or decree based on acceleration has been obtained by the trustee, the holders of a majority in aggregate principal amount of each affected series of debt securities may waive all defaults with respect to such series and rescind and annul such acceleration if all events of default, other than the non-payment of accelerated principal, have been cured, waived or otherwise remedied.
No holder of any debt securities will have any right to institute any proceeding with respect to the indenture or for any remedy under the indenture, unless such holder shall have previously given to the trustee written notice of a continuing event of default and the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the relevant series shall have made written request and offered indemnity satisfactory to the trustee to institute such proceeding as trustee, and the trustee shall not have received from the holders of a majority in aggregate principal amount of the outstanding debt securities of such series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days. However, such limitations do not apply to a suit instituted by a holder of a debt security for enforcement of payment of the principal of and premium, if any, or interest on such debt security on or after the respective due dates expressed in such debt security.
Supplemental Indentures
We and the trustee may, at any time and from time to time, without prior notice to or consent of any holders of debt securities, enter into one or more indentures supplemental to the indenture, among other things:
| · | to add guarantees to or restrictionssecure any series of debt securities; |
| · | to provide for the succession of another person pursuant to the provisions of the preferred stock.indenture relating to consolidations, mergers and sales of assets and the assumption by such successor of our covenants, agreements, and obligations, or to otherwise comply with the provisions of the indenture relating to consolidations, mergers, and sales of assets; |
| · | to surrender any right or power conferred upon us under the indenture or to add to our covenants further covenants, restrictions, conditions or provisions for the protection of the holders of all or any series of debt securities; |
| · | to cure any ambiguity or to correct or supplement any provision contained in the indenture, in any supplemental indenture or in any debt securities that may be defective or inconsistent with any other provision contained therein; |
| · | to modify or amend the indenture in such a manner as to permit the qualification of the indenture or any supplemental indenture under the Trust Indenture Act; |
| · | to add to or change any of the provisions of the indenture to supplement any of the provisions of the indenture in order to permit the defeasance and discharge of any series of debt securities pursuant to the indenture, so long as any such action does not adversely affect the interests of the holders of debt securities of any series in any material respect; |
| · | to add to, change, or eliminate any of the provisions of the indenture with respect to one or more series of debt securities, so long as any such addition, change or elimination shall not apply to any debt securities of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision; |
| · | to evidence and provide for the acceptance of appointment by a successor or separate trustee; and |
| · | to establish the form or terms of debt securities of any series and to make any change that does not adversely affect the interests of the holders of debt securities. |
With the consent of the holders of at least a majority in principal amount of debt securities of each series affected by such supplemental indenture (each series voting as one class), we and the trustee may enter into one or restriction onmore supplemental indentures for the purpose of adding any variation betweenprovisions to or changing in any manner or eliminating any of the different seriesprovisions of preferred stock as to the designations, preferences and relative, participating, optionalindenture or other specialmodifying in any manner the rights of the holders of debt securities of each such series.
Notwithstanding our rights and the qualifications, limitationsrights of the trustee to enter into one or restrictions thereof;more supplemental indentures with the consent of the holders of debt securities of the affected series as described above, no such supplemental indenture shall, without the consent of the holder of each outstanding debt security of the affected series, among other things:
| · | change the final maturity of the principal of, or any installment of interest on, any debt securities; |
| · | reduce the principal amount of any debt securities or the rate of interest on any debt securities; |
| · | change the currency in which any debt securities are payable; |
| · | impair the right of the holders to conduct a proceeding for any remedy available to the trustee; |
| · | reduce the percentage in principal amount of any series of debt securities whose holders must consent to an amendment or supplemental indenture; |
| · | modify the ranking or priority of the securities; |
| · | reduce any premium payable upon the redemption of any debt securities; or |
| · | make any change that adversely affects the relative rights of holders of subordinated debt securities with respect to senior debt securities. |
Satisfaction and Discharge of the Indenture; Defeasance
Except to the extent set forth in a supplemental indenture with respect to any series of debt securities, we, at our election, may discharge the indenture and the severalindenture shall generally cease to be of any further effect with respect to that series of preferred stockdebt securities if (a) we have delivered to the trustee for cancellation all debt securities of
that series (with certain limited exceptions) or (b) all debt securities of that series not previously delivered to the trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year, and we have deposited with the trustee the entire amount sufficient to pay at maturity or upon redemption all such debt securities.
In addition, we have a “legal defeasance option” (pursuant to which we may except as otherwise expressly providedterminate, with respect to the debt securities of a particular series, all of our obligations under such debt securities and the indenture with respect to such debt securities) and a “covenant defeasance option” (pursuant to which we may terminate, with respect to the debt securities of a particular series, our obligations with respect to such debt securities under certain specified covenants contained in any prospectus supplement, document incorporated by referencethe indenture). If we exercise our legal defeasance option with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default. If we exercise our covenant defeasance option with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default related to the specified covenants.
We may exercise our legal defeasance option or any free writing prospectus, as applicable, varyour covenant defeasance option with respect to the debt securities of a series only if we irrevocably deposit in trust with the trustee cash or U.S. government obligations (as defined in the indenture) for the payment of principal, premium, if any, and all respectsinterest with respect to such debt securities to maturity or redemption, as fixedthe case may be. In addition, to exercise either of our defeasance options, we must comply with certain other conditions, including the delivery to the trustee of an opinion of counsel to the effect that the holders of debt securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and determinedwill be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred (and, in the case of legal defeasance only, such opinion of counsel must be based on a ruling from the Internal Revenue Service or other change in applicable Federal income tax law).
The trustee will hold in trust the cash or U.S. government obligations deposited with it as described above and will apply the deposited cash and the proceeds from deposited U.S. government obligations to the payment of principal, premium, if any, and interest with respect to the debt securities of the defeased series.
Mergers, Consolidations and Certain Sales of Assets
We may not
| · | consolidate with or merge into any other person or entity or permit any other person or entity to consolidate with or merge into us in a transaction in which we are not the surviving entity, or |
| · | transfer, lease or dispose of all or substantially all of our assets to any other person or entity |
unless:
| · | the resulting, surviving or transferee entity shall be a corporation organized and existing under the laws of the United States or any state thereof and such resulting, surviving or transferee entity shall expressly assume, by supplemental indenture, executed and delivered in form satisfactory to the trustee, all of our obligations under the debt securities and the indenture; |
| · | immediately after giving effect to such transaction (and treating any indebtedness which becomes an obligation of the resulting, surviving or transferee entity as a result of such transaction as having been incurred by such entity at the time of such transaction), no default or event of default would occur or be continuing; and |
| · | we shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the indenture. |
Governing Law
The indenture and the debt securities will be governed by the resolutionlaws of the State of New York.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, incorporator or resolutionsstockholder of our boardWaferGen, as such, shall have any liability for any obligations of directorsWaferGen under the debt securities or the indenture or for any committee thereof, providingclaim based on, in respect of, or by reason of, such obligations or their creation, solely by reason of his, her, or its status as director, officer, incorporator or stockholder of WaferGen. By accepting a debt security, each holder waives and releases all such liability, but only such liability. The waiver and release are part of the consideration for the issuance of the various series; provided, however,debt securities. Nevertheless, such waiver may not be effective to waive liabilities under the federal securities laws and it has been the view of the SEC that allsuch a waiver is against public policy.
Conversion or Exchange Rights
Any debt securities offered hereby may be convertible into or exchangeable for shares of any one series of preferred stock shall have the same designation, preferences and relati ve, participating, optionalour equity or other special rightssecurities. The terms and qualifications, limitations and restrictions.conditions of such conversion or exchange will be set forth in the applicable prospectus supplement. Such terms may include, among others, the following:
Except as otherwise required by law, or as otherwise fixed by resolution or resolutions of our board of directors | · | the conversion or exchange price; |
| · | the conversion or exchange period; |
| · | provisions regarding our ability or that of the holder to convert or exchange the debt securities; |
| · | events requiring adjustment to the conversion or exchange price; and |
| · | provisions affecting conversion or exchange in the event of our redemption of such debt securities. |
Concerning the Trustee
The indenture provides that there may be more than one trustee with respect to one or more series of debt securities. If there are different trustees for different series of debt securities, each trustee will be a trustee of a trust under a supplemental indenture separate and apart from the trust administered by any other trustee under such indenture. Except as otherwise indicated in this prospectus or any prospectus supplement, any action permitted to be taken by a trustee may be taken by the trustee only with respect to the one or more series of debt securities for which it is the trustee under an indenture. Any trustee under the indenture or a supplemental indenture may resign or be removed with respect to one or more series of debt securities. All payments of principal of, premium, if any, and interest on, and all registration, transfer, exchange authentication and delivery (including authentication and delivery on original issuance of the debt securities) of, the debt securities of a series will be effected by the trustee with respect to such series at an office designated by the trustee.
The indenture contains limitations on the right of the trustee, should it become a creditor of WaferGen to obtain payment of claims in certain cases or to realize on certain property received in respect of any such claim as security or otherwise. If the trustee acquires an interest that conflicts with any duties with respect to the debt securities, the trustee is required to either resign or eliminate such conflicting interest to the extent and in the manner provided by the indenture.
Limitations on Issuance of Bearer Debt Securities
Debt securities in bearer form are subject to special U.S. tax requirements and may not be offered, sold, or delivered within the United States or its possessions or to a U.S. person, except in certain transactions permitted by U.S. tax regulations. Investors should consult the relevant prospectus supplement, in the event that bearer debt securities are issued for special procedures and restrictions that will apply to such an offering.
DESCRIPTION OF PREFERRED STOCK WE MAY OFFER We are authorized to issue 10,000,000 shares of “blank check” preferred stock. Our board of directors is vested with authority to divide the shares of preferred stock into series and to fix and determine the entire voting powerrelative designation, powers, preferences and allrights of the shares of any series and the qualifications, limitations, or restrictions or any unissued series of preferred stock. Our board of directors has designated 3,663 shares of our preferred stock as Series 1 Convertible Preferred Stock, none of which are presently outstanding.
Future Classes of Series of Preferred Stock
Upon issuance of a new series of preferred stock, our board of directors is authorized, to specify:
| · | the number of shares to be included in the series; |
| · | the annual dividend rate for the series, if any, and any restrictions or conditions on the payment of dividends; |
| · | the redemption price, if any, and the terms and conditions of redemption; |
| · | any sinking fund provisions for the purchase or redemption of the series; |
| · | if the series is convertible, the terms and conditions of conversion; |
| · | the amounts payable to holders upon our liquidation, dissolution or winding up; and |
| · | any other rights, preferences and limitations relating to the series, including voting rights. |
Our board of director’s ability to authorize, without shareholder approval, the issuance of preferred stock with conversion and other rights, may adversely affect the rights of holders of our common stock or other series of preferred stock that may be outstanding.
Specific Terms of a Series of Preferred Stock
The new preferred stock we may offer will be issued in one or more series. The preferred stock will have the dividend, liquidation, redemption and voting rights discussed below, unless otherwise described in a prospectus supplement relating to a particular series. A prospectus supplement will discuss the following features of the series of preferred stock to which it relates:
| · | the designations and stated value per share; |
| · | the number of shares offered; |
| · | the amount of liquidation preference per share; |
| · | the public offering price at which the preferred stock will be issued; |
| · | the dividend rate, the method of its calculation, the dates on which dividends would be paid and the dates, if any, from which dividends would cumulate; |
| · | any redemption or sinking fund provisions; |
| · | any conversion or exchange rights; and |
| · | any additional voting, dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges, limitations and restrictions. |
Rank
Unless otherwise stated in the prospectus supplement, the new preferred stock will have priority over our common stock with respect to dividends and distribution of assets, but will rank junior to all our outstanding indebtedness for borrowed money. Any series of preferred stock could rank senior, equal or junior to our other capital stock, as may be specified in a prospectus supplement, as long as our articles of incorporation so permit.
Dividends
Holders of each series of newly issued preferred stock shall be vested exclusivelyentitled to receive cash dividends to the extent specified in the commonprospectus supplement when, as and if declared by our board of directors, from funds legally available for the payment of dividends. The rates and dates of payment of dividends of each series of preferred stock and each holderwill be stated in the prospectus supplement. Dividends will be payable to the holders of record of preferred stock as they appear on our books on the record dates fixed by our board of directors. Dividends on any series of preferred stock may be cumulative or non-cumulative, as discussed in the applicable prospectus supplement.
Convertibility
Shares of a new series of preferred stock may be exchangeable or convertible into shares of our common stock, who atanother series of preferred stock or other securities or property. The conversion or exchange may be mandatory or optional. The prospectus supplement will specify whether the time possessespreferred stock being offered has any conversion or exchange features, and will describe all the related terms and conditions.
Redemption
The terms, if any, on which shares of preferred stock of a new series may be redeemed will be discussed in the applicable prospectus supplement.
Liquidation
Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of WaferGen, holders of each series of newly issued preferred stock will be entitled to receive distributions upon liquidation in the amount described in the related prospectus supplement. These distributions will be made before any distribution is made on any securities ranking junior to the preferred stock with respect to liquidation, including our common stock. If the liquidation amounts payable relating to the preferred stock of any series and any other securities ranking on a parity regarding liquidation rights are not paid in full, the holders of the preferred stock of that series will share ratably in proportion to the full liquidation preferences of each security. Holders of our preferred stock will not be entitled to any other amounts from us after they have received their full liquidation preference.
Voting
The holders of preferred stock of each new series will have no voting power forrights, except as required by law and as described below or in a prospectus supplement. Our board of directors may, upon issuance of a series of preferred stock, grant voting rights to the holders of that series to elect additional board members if we fail to pay dividends in a timely fashion.
Without the affirmative vote of a majority of the shares of preferred stock of any purpose shallseries then outstanding, we may not:
| · | increase or decrease the aggregate number of authorized shares of that series; |
| · | increase or decrease the par value of the shares of that series; or |
| · | alter or change the powers, preferences or special rights of the shares of that series so as to affect them adversely. |
No Other Rights
The shares of a new series of preferred stock will not have any preferences, voting powers or relative, participating, optional or other special rights except:
| · | as discussed above or in the prospectus supplement; |
| · | as provided in our articles of incorporation and in the certificate of designations; and |
| · | as otherwise required by law. |
DESCRIPTION OF COMMON STOCK WE MAY OFFER The following summary description of our common stock is based on the provisions of our articles of incorporation or bylaws and the applicable provisions of Chapter 78 of the Nevada Revised Statutes (Private Corporations). This information may not be complete in all respects and is qualified entirely by reference to the provisions of our articles of incorporation, bylaws and Chapter 78 of the Nevada Revised Statutes (Private Corporations). For information on how to obtain copies of our articles of incorporation and bylaws, see the discussion above under the heading “Where You Can Find More Information.”
We may offer our common stock issuable upon the conversion of debt securities or preferred stock and the exercise of warrants.
Authorized Capital
We currently have authority to issue 300,000,000 shares of our common stock, par value $0.001 per share.
Voting Rights
Each outstanding share of our common stock is entitled to one vote on all matters submitted to a vote of shareholders. There is no cumulative voting.
Dividend and Liquidation Rights
The holders of outstanding shares of our common stock are entitled to receive dividends out of assets legally available for each sharethe payment of suchdividends at the times and in the amounts as our board of directors may from time to time determine. The shares of our common stock standing in such stockholder’s nameare neither redeemable nor convertible. Holders of our common stock have no preemptive or subscription rights to purchase any securities of WaferGen. Upon the liquidation, dissolution or winding up of WaferGen, the holders of our common stock are entitled to receive pro rata the assets of WaferGen which are legally available for distribution, after payment of all debts and other liabilities and subject to the prior rights of any holders of preferred stock then outstanding.
We have never paid any cash dividends on our books.common stock.
DESCRIPTION OF WARRANTS WE MAY OFFER We may issue warrants for the purchase of debt securities, preferred stock or common stock. Warrants may be issued independently or together with debt securities, preferred stock or common stock and may be attached to or separate from any offered securities. Any issue of warrants will be governed by the terms of the applicable form of warrant and any related warrant agreement which we will file as an exhibit to our registration statement at or before the time we issue any warrants.
The particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
| · | the title of such warrants; |
| · | the aggregate number of such warrants; |
| · | the price or prices at which such warrants will be issued; |
| · | the currency or currencies (including composite currencies) in which the price of such warrants may be payable; |
| · | the terms of the securities purchasable upon exercise of such warrants and the procedures and conditions relating to the exercise of such warrants; |
| · | the price at which the securities purchasable upon exercise of such warrants may be purchased; |
| · | the date on which the right to exercise such warrants will commence and the date on which such right shall expire; |
| · | any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants; |
| · | if applicable, the minimum or maximum amount of such warrants that may be exercised at any one time; |
| · | if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security; |
| · | if applicable, the date on and after which such warrants and the related securities will be separately transferable; |
| · | information with respect to book-entry procedures, if any; and |
| · | any other terms of such warrants, including terms, procedures and limitations relating to the exchange or exercise of such warrants. |
The prospectus supplement relating to any warrants to purchase equity securities may also include, if applicable, a discussion of certain U.S. federal income tax and ERISA considerations.
Warrants for the purchase of preferred stock and common stock will be offered and exercisable for U.S. dollars only.
Each warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void. We will specify the place or places where, and the manner in which, warrants may be exercised in the applicable prospectus supplement.
Prior to the exercise of any warrants to purchase debt securities, preferred stock or common stock, holders of the warrants will not have any of the rights of holders of the debt securities, preferred stock or common stock purchasable upon exercise.
DESCRIPTION OF UNITS WE MAY OFFER We may issue units composed of any combination of our debt securities, common stock, preferred stock and warrants. Any issue of units will be governed by the terms of the applicable form of unit agreement and any supplemental agreements applicable to such set of units. We will file such agreements as exhibits to our registration statement at or before the time we issue any warrants.
We will issue each unit so that the holder of the unit is also the holder of each security included in the unit. As a result, 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.
The applicable prospectus supplement and information incorporated by reference may describe:
| · | 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 for the issuance, payment, settlement, transfer, or exchange of the units or of the securities composing the units; |
| · | whether the units will be issued in fully registered or global form; and |
| · | any other terms of the units. |
The applicable provisions described in this section, as well as those described under “Description of Debt Securities We May Offer,” “Description of Preferred Stock We May Offer”, “Description of Common Stock We May Offer” and “Description of Warrants We May Offer” above, will apply to each unit and to each security included in each unit, respectively.
Liability and IndemnificationLIABILITY OF DIRECTORS AND EXECUTIVE OFFICERS
Nevada Revised Statutes (NRS) Sections 78.7502 and 78.751 provide us with the power to indemnify any of our directors and officers. The director or officer must have conducted himself/herself in good faith and reasonably believe that his/her conduct was in, or not opposed to, our best interests. In a criminal action, the director or officer must not have had reasonable cause to believe his/her conduct was unlawful.
Under NRS Section 78.751, advances for expenses may be made by agreement if the director or officer affirms in writing that he/she believes he/she has met the standards and will personally repay the expenses if it is determined the officer or director did not meet the standards.
Our bylaws include an indemnification provision under which we have the power to indemnify, to the extent permitted under Nevada law, our current and former directors and officers, or any person who serves or served at our request for our benefit as a director or officer of another corporation or our representative in a partnership, joint venture, trust or other enterprise, against all expenses, liability and loss reasonably incurred by reason of being or having been a director, officer or representative of ours or any of our subsidiaries. We may make advances for expenses upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he/she is not entitled to be indemnified by us. If Section 2115 of the California General Corporati onCorporation Law (“CGCL”) is applicable to us, the laws of California also will govern.
Our articles of incorporation provide a limitation of liability such that no director or officer shall be personally liable to us or any of our stockholders for damages for breach of fiduciary duty as a director or officer, involving any act or omission of any such director or officer, provided there was no intentional misconduct, fraud or a knowing violation of the law, or payment of dividends in violation of NRS Section 78.300.
We have entered into separate indemnification agreements with our directors and officers which would require us, among other things, to indemnify them against certain liabilities which may arise by reason of their status or service as directors or officers to the fullest extent permitted by law. At present, there is no pending litigation or proceeding involving any of our directors or officers of regarding which indemnification is sought, nor are we aware of any threatened litigation that may result in claims for indemnification. We also maintain insurance policies that indemnify our directors and officers against various liabilities, including liabilities arising under the Securities Act, that might be incurred by any director or officer in his or her capacity as such.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted for our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event a claim for indemnification against such liabilities (other than payment by us for expenses incurred or paid by a director, officer or controlling person of ours in successful defense of any action, suit, or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdi ction,jurisdiction, the question of whether such indemnification by it is against public policy in the Securities Act and will be governed by the final adjudication of such issue.
Anti-Takeover Effects of Provisions of Nevada State LawANTI-TAKEOVER EFFECTS OF PROVISIONS OF NEVADA STATE LAW
In the future we may become subject to Nevada’s control share law. A corporation is subject to Nevada’s control share law if it has more than 200 stockholders, at least 100 of whom are stockholders of record and residents of Nevada, and if the corporation does business in Nevada or through an affiliated corporation.
The law focuses on the acquisition of a “controlling interest” which means the ownership of outstanding voting shares is sufficient, but for the control share law, to enable the acquiring person to exercise the following proportions of the voting power of the corporation in the election of directors: (1) one-fifth or more but less than one-third, (2) one-third or more but less than a majority, or (3) a majority or more. The ability to exercise voting power may be direct or indirect, as well as individual or in association with others.
The effect of the control share law is that the acquiring person, and those acting in association with that person, obtain only voting rights in the control shares as are conferred by a resolution of the stockholders of the corporation, approved at a special or annual meeting of stockholders. The control share law contemplates that voting rights will be considered only once by the other stockholders. Thus, there is no authority to take away voting rights from the control shares of an acquiring person once those rights have been approved. If the stockholders do not grant voting rights to the control shares acquired by an acquiring person, those shares do not become permanent non-voting shares. The acquiring person is free to sell its shares to others. If the buyers of those shares themselves do not acquire a controlling interest, their shares do not become governed by the control share law.
If control shares are accorded full voting rights and the acquiring person has acquired control shares with a majority or more of the voting power, any stockholder of record, other than an acquiring person, who has not voted in favor of approval of voting rights is entitled to demand fair value for the stockholder’s shares.
Nevada’s control share law may have the effect of discouraging corporate takeovers.
In addition to the control share law, Nevada has a business combination law, which prohibits some business combinations between Nevada corporations and “interested stockholders” for three years after the “interested stockholder” first becomes an “interested stockholder” unless the corporation’s board of directors approves the combination in advance. For purposes of Nevada law, an “interested stockholder” is any person who is (1) the beneficial owner, directly or indirectly, of ten percent or more of the voting power of the outstanding voting shares of the corporation, or (2) an affiliate or associate of the corporation and at any time within the three previous years was the beneficial owner, directly or indirectly, of ten percent or more of the voting power of the then outstanding shares of the corporation. The definition of the term “business combination” is sufficiently broad to cover virtually any kind of transaction that would allow a potential acquirer to use the corporation’s assets to finance the acquisition or otherwise to benefit its own interests rather than the interests of the corporation and its other stockholders.
The effect of Nevada’s business combination law is to potentially discourage parties interested in taking control of our company from doing so if it cannot obtain the approval of our board of directors.
Transfer Agent and Registrar
The transfer agent for our common stock is Continental Stock Transfer & Trust Company. The transfer agent address is 17 Battery Place, 8th Fl., New York, NY 10004, and its telephone number is (212) 845-3212. The transfer agent and registrar for any series or class of preferred stock will be set forth in the applicable prospectus supplement.
Listing
Our common stock is traded on the OTC Bulletin Board under the symbol “WGBS.OB.”
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general terms and provisions of the base indenture, to be entered into between us and an entity, identified in the applicable prospectus supplement, as trustee, under which the debt securities are to be issued from time to time. We have filed a form of the base indenture as an exhibit to the registration statement of which this prospectus is a part. When the debt securities are offered in the future, the applicable offering material will explain the particular terms of those securities and the extent to which the general provisions may apply. The base indenture, as it may be supplemented, amended or modified from time to time, is referred to in this prospectus as the “indenture.” Wherever particular sections or defined terms of the indenture are referred to, it is intended that s uch sections or defined terms shall be incorporated herein by reference. In this section of this prospectus, the term “the Company” refers only to WaferGen Bio-systems, Inc. and not to any of its subsidiaries.
This summary and any description of the indenture and any debt securities in the applicable prospectus supplement, information incorporated by reference or free writing prospectus is subject to and is qualified in its entirety by reference to all the provisions of the indenture, any indenture supplement and the terms of the debt securities, including, in each case, the definitions therein of certain terms. We will file each of these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this prospectus is a part on or before the time we issue a series of debt securities. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” above for information on how to obtain a copy of a document when it is file d. The specific terms of the debt securities as described in a prospectus supplement, information incorporated by reference, or free writing prospectus will supplement and, if applicable, may modify or replace the general terms described in this section.
The debt securities will represent unsecured general obligations of the Company, unless otherwise provided in the applicable offering material. As indicated in the applicable offering material, the debt securities will either be senior debt or subordinated debt.
The indenture does not limit the amount of debt securities that may be issued thereunder. The applicable prospectus supplement, documents incorporated by reference, or free writing prospectus with respect to any debt securities will set forth the following terms of the debt securities offered pursuant thereto:
| · | the title and series of such debt securities; |
| · | any limit upon the aggregate principal amount of such debt securities of such series; |
| · | whether such debt securities will be in global or other form; |
| · | the date or dates and method or methods by which principal and any premium on such debt securities is payable; |
| · | the interest rate or rates (or method by which such rate will be determined), if any; |
| · | the dates on which any such interest will be payable and the method of payment; |
| · | whether and under what circumstances any additional amounts are payable with respect to such debt securities; |
| · | the notice, if any, to holders of such debt securities regarding the determination of interest on a floating rate debt security; |
| · | the basis upon which interest on such debt securities shall be calculated, if other than that of a 360 day year of twelve 30-day months; |
| · | the place or places where the principal of and interest or additional amounts, if any, on such debt securities will be payable; |
| · | any redemption or sinking fund provisions, or the terms of any repurchase at the option of the holder of the debt securities; |
| · | the denominations of such debt securities, if other than $1,000 and integral multiples thereof; |
| · | any rights of the holders of such debt securities to convert the debt securities into, or exchange the debt securities for, other securities or property; |
| · | the terms, if any, on which payment of principal or any premium, interest or additional amounts on such debt securities will be payable in a currency other than U.S. dollars; |
| · | the terms, if any, by which the amount of payments of principal or any premium, interest or additional amounts on such debt securities may be determined by reference to an index, formula, financial or economic measure or other methods; |
| · | if other than the principal amount hereof, the portion of the principal amount of such debt securities that will be payable upon declaration of acceleration of the maturity thereof or provable in bankruptcy; |
| · | any events of default or covenants in addition to or in lieu of those described herein and remedies therefor; |
| · | whether such debt securities will be subject to defeasance or covenant defeasance; |
| · | the terms, if any, upon which such debt securities are to be issuable upon the exercise of warrants, units or rights; |
| · | any trustees and any authenticating or paying agents, transfer agents or registrars or any other agents with respect to such debt securities; |
| · | the terms, if any, on which such debt securities will be subordinate to other debt of the Company; |
| · | whether such debt securities will be guaranteed and the terms thereof; |
| · | whether such debt securities will be secured by collateral and the terms of such security; and |
| · | any other specific terms of such debt securities and any other deletions from or additions to or modifications of the indenture with respect to such debt securities. |
Debt securities may be presented for exchange, conversion or transfer in the manner, at the places and subject to the restrictions set forth in the debt securities and the applicable offering material. Such services will be provided without charge, other than any tax or other governmental charge payable in connection therewith, but subject to the limitations provided in the indenture.
The indenture does not contain any covenant or other specific provision affording protection to holders of the debt securities in the event of a highly leveraged transaction or a change in control of the Company, except to the limited extent described below under “— Consolidation, Merger and Sale of Assets.”
Modification and Waiver
The indenture provides that supplements to the indenture and the applicable supplemental indentures may be made by the Company and the trustee for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the indenture or of modifying in any manner the rights of the holders of debt securities of a series under the indenture or the debt securities of such series, with the consent of the holders of a majority (or such greater amount as is provided for any particular series of debt securities) in principal amount of the outstanding debt securities issued under such indenture that are affected by the supplemental indenture, voting as a single class; provided that no such supplemental indenture may, without the consent of the holder of each such debt security affected thereby, among other thi ngs:
(a) change the stated maturity of the principal of, or any premium, interest or additional amounts on, such debt securities, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest or any additional amounts thereon, or reduce any premium payable on redemption thereof or otherwise, or reduce the amount of the principal of debt securities issued with original issue discount that would be due and payable upon an acceleration of the maturity thereof or the amount thereof provable in bankruptcy, or change the redemption provisions or adversely affect the right of repayment at the option of the holder, or change the place of payment or currency in which the principal of, or any premium, interest or additional amounts with respect to any debt security is payable, or impair or affect the right of any holder of debt securities to institute suit for the payment after such payment is due (except a rescission and annulment of acceleration with respect to a series of debt securities by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of such series and a waiver of the payment default that resulted from such acceleration);
(b) reduce the percentage of outstanding debt securities of any series, the consent of the holders of which is required for any such supplemental indenture, or the consent of whose holders is required for any waiver or reduce the quorum required for voting;
(c) modify any of the provisions of the sections of such indenture relating to supplemental indentures with the consent of the holders, waivers of past defaults or securities redeemed in part, except to increase any such percentage or to provide that certain other provisions of such indenture cannot be modified or waived without the consent of each holder affected thereby; or
(d) make any change that adversely affects the right to convert or exchange any security into or for common stock or other securities, cash or other property in accordance with the terms of the applicable debt security.
The indenture provides that a supplemental indenture that changes or eliminates any covenant or other provision of the indenture that has expressly been included solely for the benefit of one or more particular series of debt securities, or that modifies the rights of the holders of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under the indenture of the holders of debt securities of any other series.
The indenture provides that the Company and the trustee may, without the consent of the holders of any series of debt securities issued thereunder, enter into additional supplemental indentures for one of the following purposes:
(a) to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company in such indenture and in the debt securities issued thereunder;
(b) to add to the covenants of the Company or to surrender any right or power conferred on the Company pursuant to the indenture;
(c) to establish the form and terms of debt securities issued thereunder;
(d) to evidence and provide for a successor trustee under such indenture with respect to one or more series of debt securities issued thereunder or to provide for or facilitate the administration of the trusts under such indenture by more than one trustee;
(e) to cure any ambiguity, to correct or supplement any provision in the indenture that may be defective or inconsistent with any other provision of the indenture or to make any other provisions with respect to matters or questions arising under such indenture; provided that no such action pursuant to this clause (e) shall adversely affect the interests of the holders of any series of debt securities issued thereunder in any material respect;
(f) 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 securities under the indenture;
(g) to add any additional events of default with respect to all or any series of debt securities;
(h) to supplement any of the provisions of the indenture as may be necessary to permit or facilitate the defeasance and discharge of any series of debt securities, provided that such action does not adversely affect the interests of any holder of an outstanding debt security of such series or any other security in any material respect;
(i) to make provisions with respect to the conversion or exchange rights of holders of debt securities of any series;
(j) to pledge to the trustee as security for the debt securities of any series any property or assets;
(k) to add guarantees in respect of the debt securities of one or more series;
(l) to change or eliminate any of the provisions of the indenture, provided that any such change or elimination become effective only when there is no security of any series outstanding created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
(m) to provide for certificated securities in addition to or in place of global securities;
(n) to qualify such indenture under the Trust Indenture Act of 1939, as amended;
(o) with respect to the debt securities of any series, to conform the text of the indenture or the debt securities of such series to any provision of the description thereof in the Company’s offering memorandum or prospectus relating to the initial offering of such debt securities, to the extent that such provision, in the good faith judgment of the Company, was intended to be a verbatim recitation of a provision of the indenture or such securities; or
(p) to make any other change that does not adversely affect the rights of holders of any series of debt securities issued thereunder in any material respect.
Unless otherwise provided in any applicable prospectus supplement, documents incorporated by reference or free writing prospectus, the following will be events of default under the indenture with respect to each series of debt securities issued thereunder:
(a) default for 30 days in the payment when due of interest on, or any additional amount in respect of, any series of debt securities;
(b) default in the payment of principal or any premium on any series of the debt securities outstanding under the indenture when due;
(c) default in the payment, if any, of any sinking fund installment when and as due by the terms of any debt security of such series, subject to any cure period that may be specified in any debt security of such series;
(d) failure by the Company for 60 days after receipt by registered or certified mail of written notice from the trustee upon instruction from holders of at least 25% in principal amount of the then outstanding debt securities of such series to comply with any of the other agreements in the indenture and stating that such notice is a “Notice of Default” under the indenture; provided, that if such failure cannot be remedied within such 60-day period, such period shall be automatically extended by another 60 days so long as: (i) such failure is subject to cure; and (ii) the Company is using commercially reasonable efforts to cure such failure; and provided, further, that a failure to comply with any such other agreement in the indenture that results from a change in generally accepted accounting princ iples shall not be deemed to be an event of default;
(e) certain events of bankruptcy, insolvency or reorganization of the Company; and
(f) any other event of default provided in a supplemental indenture with respect to a particular series of debt securities, provided that any event of default that results from a change in generally accepted accounting principles shall not be deemed to be an event of default.
In case an event of default specified in clause (a) or (b) above shall occur and be continuing with respect to any series of debt securities, holders of at least 25%, and in case an event of default specified in any clause other than clause (a), (b) or (e) above shall occur and be continuing with respect to any series of debt securities, holders of at least a majority, in aggregate principal amount of the debt securities of such series then outstanding may declare the principal (or, in the case of discounted debt securities, the amount specified in the terms thereof) of such series to be due and payable. If an event of default described in (e) above shall occur and be continuing then the principal amount (or, in the case of discounted debt securities, the amount specified in the terms thereof) of all the debt securities outstanding sh all be and become due and payable immediately, without notice or other action by any holder or the trustee, to the full extent permitted by law. Any past or existing default or event of default with respect to particular series of debt securities under such indenture may be waived by the holders of a majority in aggregate principal amount of the outstanding debt securities of such series, except in each case a continuing default (1) in the payment of the principal of, any premium or interest on, or any additional amounts with respect to, any debt security of such series, or (2) in respect of a covenant or provision which cannot be modified or amended without the consent of each holder affected thereby.
The indenture provides that the trustee may withhold notice to the holders of any default with respect to any series of debt securities (except in payment of principal of or interest or premium on, or sinking fund payment in respect of, the debt securities) if the trustee considers it in the interest of holders to do so.
The indenture contains a provision entitling the trustee to be indemnified by the holders before proceeding to exercise any trust or power under the indenture at the request of such holders. The indenture provides that the holders of a majority in aggregate principal amount of the then outstanding debt securities of any series may direct the time, method and place of conducting any proceedings for any remedy available to the trustee or of exercising any trust or power conferred upon the trustee with respect to the debt securities of such series; provided, however, that the trustee may decline to follow any such direction if, among other reasons, the trustee determines in good faith that the actions or proceedings as directed may not lawfully be taken or would be unduly prejudicial to the holders of the debt securities of such series n ot joining in such direction. The right of a holder to institute a proceeding with respect to a series of debt securities will be subject to certain conditions precedent including, without limitation, that in case of an event of default specified in clause (a), (b) or (e) of the first paragraph above under “— Events of Default,” holders of at least 25%, or in case of an event of default other than specified in clause (a), (b) or (e) of the first paragraph above under “— Events of Default”, holders of at least a majority, in aggregate principal amount of the debt securities of such series then outstanding make a written request upon the trustee to exercise its powers under such indenture, indemnify the trustee and afford the trustee reasonable opportunity to act. Notwithstanding the foregoing, the holder has an absolute right to receipt of the principal of, premium, if any, and interest when due on the debt securities, to require conv ersion of debt securities if such indenture provides for convertibility at the option of the holder and to institute suit for the enforcement thereof.
Consolidation, Merger and Sale of Assets
The indenture provides that the Company may not directly or indirectly consolidate with or merge with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets and properties and the assets and properties of its subsidiaries (taken as a whole) to another person in one or more related transactions unless the successor person is a person organized under the laws of any domestic jurisdiction and assumes the Company’s obligations on the debt securities issued thereunder, and under the indenture, and after giving effect thereto no event of default, and no event that, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing, and that certain other conditions are met.
Payment of Principal, any Premium, Interest or Additional Amounts. The Company will duly and punctually pay the principal of, and premium and interest on or any additional amounts payable with respect to, any debt securities of any series in accordance with their terms.
Maintenance of Office or Agency. The Company will be required to maintain an office or agency in each place of payment for each series of debt securities for notice and demand purposes and for the purposes of presenting or surrendering debt securities for payment, registration of transfer, or exchange.
Reports. So long as any debt securities of a particular series are outstanding under the indenture, the Company will file with the trustee, within 30 days after the Company has filed the same with the SEC, unless such reports are available on the SEC’s EDGAR filing system (or any successor thereto), copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe), which the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations.
Additional Covenants. Any additional covenants of the Company with respect to any series of debt securities will be set forth in the applicable prospectus supplement, documents incorporated by reference or free writing prospectus relating thereto.
The terms and conditions, if any, upon which the debt securities are convertible into common stock or preferred stock will be set forth in the applicable prospectus supplement, documents incorporated by reference or free writing prospectus relating thereto. Such terms will include the conversion price (or manner of calculation thereof), the conversion period, provisions as to whether conversion will be at the option of the holders or the Company, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event of redemption of such debt securities and any restrictions on conversion.
Redemption; Repurchase at the Option of the Holder; Sinking Fund
The terms and conditions, if any, upon which: (i) the debt securities are redeemable at the option of the Company; (ii) the holder of debt securities may cause the Company to repurchase such debt securities; or (iii) the debt securities are subject to any sinking fund will be set forth in the applicable prospectus supplement, documents incorporated by reference or free writing prospectus relating thereto.
Repurchases on the Open Market
The Company or any affiliate of the Company may at any time or from time to time repurchase any debt security in the open market or otherwise. Such debt securities may, at the option of the Company or the relevant affiliate of the Company, be held, resold or surrendered to the trustee for cancellation.
Discharge, Defeasance and Covenant Defeasance
The indenture provides, with respect to each series of debt securities issued thereunder, that the Company may satisfy and discharge its obligations under such debt securities of a series and such indenture with respect to debt securities of such series if:
(a) all debt securities of such series previously authenticated and delivered, with certain exceptions, have been accepted by the trustee for cancellation; or
(b) (i) the debt securities of such series have become due and payable, or mature within one year, or all of them are to be called for redemption within one year under arrangements satisfactory to the trustee for giving the notice of redemption and the Company irrevocably deposits in trust with the trustee, as trust funds solely for the benefit of the holders of such debt securities, for that purpose, money or governmental obligations or a combination thereof sufficient (in the opinion of a nationally recognized independent registered public accounting firm expressed in a written certification thereof delivered to the trustee) to pay the entire indebtedness on the debt securities of such series to maturity or redemption, as the case may be, and pays all other sums payable by it under such indenture; and
(ii) the Company delivers to the trustee an officers’ certificate and an opinion of counsel, in each case stating that all conditions precedent provided for in such indenture relating to the satisfaction and discharge of such indenture with respect to the debt securities of such series have been complied with.
Notwithstanding such satisfaction and discharge, the obligations of the Company to compensate and indemnify the trustee, to pay additional amounts, if any, in respect of debt securities in certain circumstances and to convert or exchange debt securities pursuant to the terms thereof and the obligations of the Company and the trustee to hold funds in trust and to apply such funds pursuant to the terms of the indenture, with respect to issuing temporary debt securities, with respect to the registration, transfer and exchange of debt securities, with respect to the replacement of mutilated, destroyed, lost or stolen debt securities and with respect to the maintenance of an office or agency for payment, shall in each case survive such satisfaction and discharge.
Unless inapplicable to debt securities of a series pursuant to the terms thereof, the indenture provides that: (i) the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the debt securities issued thereunder of any series, and the provisions of such indenture will, except as noted below, no longer be in effect with respect to the debt securities of such series (“defeasance”); and (ii) (1) the Company may omit to comply with the covenant described above under “— Consolidation, Merger and Sale of Assets” and any other additional covenants established pursuant to the terms of such series, and such omission shall be deemed not to be an event of default under clause (d) or (f) of the first paragraph of “— Events o f Default” above and (2) the occurrence of any event described in clause (f) of the first paragraph of “— Events of Default” above shall not be deemed to be an event of default, in each case with respect to the outstanding debt securities of such series ((1) and (2) of this clause (ii), “covenant defeasance”); provided that the following conditions shall have been satisfied with respect to such series:
(a) the Company has irrevocably deposited in trust with the trustee as trust funds solely for the benefit of the holders of the debt securities of such series, for payment of the principal of and interest of the debt securities of such series, money or government obligations or a combination thereof sufficient (in the opinion of a nationally recognized independent registered public accounting firm expressed in a written certification thereof delivered to the trustee) without consideration of any reinvestment to pay and discharge the principal of and accrued interest on the outstanding debt securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the trustee), as the case may be;
(b) such defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, such indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(c) no event of default or event which with notice or lapse of time would become an event of default with respect to such debt securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the trustee an opinion of counsel as described in the indenture to the effect that the holders of the debt securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of the Company’s exercise of its option under this provision of such indenture and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance or covenant defeasance had not occurred;
(e) the Company has delivered to the trustee an officers’ certificate and an opinion of counsel, in each case stating that all conditions precedent provided for in such indenture relating to the defeasance contemplated have been complied with;
(f) if the debt securities are to be redeemed prior to their maturity, notice of such redemption shall have been duly given or in another manner satisfactory to the trustee; and
(g) any such defeasance or covenant defeasance shall comply with any additional or substitute terms provided for by the terms of such debt securities of such series.
Notwithstanding a defeasance or covenant defeasance, the Company’s obligations with respect to the following in respect of debt securities of such series will survive with respect to such securities until otherwise terminated or discharged under the terms of the indenture or no debt securities of such series are outstanding:
(a) the rights of holders of outstanding debt securities of such series to receive payments in respect of the principal of, interest on or premium or additional amounts, if any, payable in respect of, such debt securities when such payments are due from the trust referred in clause (a) in the preceding paragraph;
(b) the issuance of temporary debt securities, the registration, transfer and exchange of debt securities, the replacement of mutilated, destroyed, lost or stolen debt securities and the maintenance of an office or agency for payment and holding payments in trust;
(c) the rights, powers, trusts, duties and immunities of the trustee, and the Company’s obligations in connection therewith; and
(d) the defeasance or covenant defeasance provisions of the indenture.
The indenture provides that the debt securities and the indenture will be governed by and construed in accordance with the laws of the State of New York.
General
We may issue warrants to purchase debt securities, common stock, preferred stock or any combination of these securities. We may issue the warrants independently or together with any underlying securities, and the warrants may be attached or separate from the underlying securities. We may also issue a series of warrants under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent in connection with the warrants of such series and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants.
The following description is a summary of selected provisions relating to the warrants that we may issue. The summary is not complete. When warrants are offered in the future, a prospectus supplement, information incorporated by reference or a free writing prospectus, as applicable, will explain the particular terms of those securities and the extent to which these general provisions may apply. The specific terms of the warrants as described in a prospectus supplement, information incorporated by reference, or free writing prospectus will supplement and, if applicable, may modify or replace the general terms described in this section.
This summary and any description of warrants in the applicable prospectus supplement, information incorporated by reference or free writing prospectus is subject to and is qualified in its entirety by reference to all the provisions of any specific warrant document or agreement. We will file each of these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this prospectus is a part on or before the time we issue a series of warrants. See “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” above for information on how to obtain a copy of a warrant document when it is filed.
When we refer to a series of warrants, we mean all warrants issued as part of the same series under the applicable warrant agreement.
Terms
The applicable prospectus supplement, information incorporated by reference or free writing prospectus, may describe the terms of any warrants that we may offer, including but not limited to the following:
| · | the title of the warrants; |
| · | the total number of warrants; |
| · | the price or prices at which the warrants will be issued; |
| · | the price or prices at which the warrants may be exercised; |
| · | the currency or currencies that investors may use to pay for the warrants; |
| · | the date on which the right to exercise the warrants will commence and the date on which the right will expire; |
| · | whether the warrants will be issued in registered form or bearer form; |
| · | information with respect to book-entry procedures, if any; |
| · | if applicable, the minimum or maximum amount of warrants that may be exercised at any one time; |
| · | if applicable, the designation and terms of the underlying securities with which the warrants are issued and the number of warrants issued with each underlying security; |
| · | if applicable, the date on and after which the warrants and the related underlying securities will be separately transferable; |
| · | if applicable, a discussion of material United States federal income tax considerations; |
| · | if applicable, the terms of redemption of the warrants; |
| · | the identity of the warrant agent, if any; |
| · | the identity of the warrant agent, if any; |
| · | the procedures and conditions relating to the exercise of the warrants; and |
| · | any other terms of the warrants, including terms, procedures, and limitations relating to the exchange and exercise of the warrants. |
Warrant Agreements
We may issue the warrants in one or more series under one or more warrant agreements, each to be entered into between us and a bank, trust company, or other financial institution as warrant agent. We may add, replace, or terminate warrant agents from time to time. We may also choose to act as our own warrant agent or may choose one of our subsidiaries to do so.
The warrant agent under a warrant agreement will act solely as our agent in connection with the warrants issued under that agreement. The warrant agent will not assume any obligation or relationship of agency or trust for or with any holders of those warrants. Any holder of warrants may, without the consent of any other person, enforce by appropriate legal action, on its own behalf, its right to exercise those warrants in accordance with their terms.
Form, Exchange, and Transfer
We may issue the warrants in registered form or bearer form. Warrants issued in registered form, i.e., book-entry form, will be represented by a global security registered in the name of a depository, which will be the holder of all the warrants represented by the global security. Those investors who own beneficial interests in a global warrant will do so through participants in the depository’s system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depository and its participants. In addition, we may issue warrants in non-global form, i.e., bearer form. If any warrants are issued in non-global form, warrant certificates may be exchanged for new warrant certificate s of different denominations, and holders may exchange, transfer, or exercise their warrants at the warrant agent’s office or any other office indicated in the applicable prospectus supplement, information incorporated by reference or free writing prospectus.
Prior to the exercise of their warrants, holders of warrants exercisable for debt securities will not have any of the rights of holders of the debt securities purchasable upon such exercise and will not be entitled to payments of principal (or premium, if any) or interest, if any, on the debt securities purchasable upon such exercise. Prior to the exercise of their warrants, holders of warrants exercisable for shares of preferred stock or common stock will not have any rights of holders of the preferred stock or common stock purchasable upon such exercise and will not be entitled to dividend payments, if any, or voting rights of the preferred stock or common stock purchasable upon such exercise.
Exercise of Warrants
A warrant will entitle the holder to purchase for cash an amount of securities at an exercise price that will be stated in, or that will be determinable as described in, the applicable prospectus supplement, information incorporated by reference or free writing prospectus. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable offering material. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be redeemed as set forth in the applicable offering material.
Warrants may be exercised as set forth in the applicable offering material. Upon receipt of 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 offering material, we will forward, as soon as practicable, the securities purchasable upon such exercise. If less than all of the warrants represented by such warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
We may issue rights to purchase our debt securities, common stock, preferred stock or other securities. These rights may be issued independently or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the rights in such offering. In connection with any offering of such rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
Each series of rights will be issued under a separate rights agreement which we will enter into with a bank or trust company, as rights agent, all which will be set forth in the relevant offering material. The rights agent will act solely as our agent in connection with the certificates relating to the rights and will not assume any obligation or relationship of agency or trust with any holders of rights certificates or beneficial owners of rights.
The following description is a summary of selected provisions relating to rights that we may offer. The summary is not complete. When rights are offered in the future, a prospectus supplement, information incorporated by reference or a free writing prospectus, as applicable, will explain the particular terms of those securities and the extent to which these general provisions may apply. The specific terms of the rights as described in a prospectus supplement, information incorporated by reference, or free writing prospectus will supplement and, if applicable, may modify or replace the general terms described in this section.
This summary and any description of rights in the applicable prospectus supplement, information incorporated by reference or free writing prospectus is subject to and is qualified in its entirety by reference to the rights agreement and the rights certificates. We will file each of these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this prospectus is a part on or before the time we issue a series of rights. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” above for information on how to obtain a copy of a document when it is filed.
The applicable prospectus supplement, information incorporated by reference or free writing prospectus may describe:
| · | In the case of a distribution of rights to our stockholders, the date of determining the stockholders entitled to the rights distribution; |
| · | In the case of a distribution of rights to our stockholders, the number of rights issued or to be issued to each stockholder; |
| · | the exercise price payable for the underlying debt securities, common stock, preferred stock or other securities upon the exercise of the rights; |
| · | the number and terms of the underlying debt securities, common stock, preferred stock or other securities which may be purchased per each right; |
| · | the extent to which the rights are transferable; |
| · | the date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall expire; |
| · | the extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; |
· if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of such rights; and
| · | any other terms of the rights, including, but not limited to, the terms, procedures, conditions and limitations relating to the exchange and exercise of the rights. |
The provisions described in this section, as well as those described under “—Description of Debt Securities” and “—Description of Capital Stock” above, will apply, as applicable, to any rights we offer.
We may issue units composed of any combination of our debt securities, common stock, preferred stock and warrants. We will issue each unit so that the holder of the unit is also the holder of each security included in the unit. As a result, 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.
The following description is a summary of selected provisions relating to units that we may offer. The summary is not complete. When units are offered in the future, a prospectus supplement, information incorporated by reference or a free writing prospectus, as applicable, will explain the particular terms of those securities and the extent to which these general provisions may apply. The specific terms of the units as described in a prospectus supplement, information incorporated by reference, or free writing prospectus will supplement and, if applicable, may modify or replace the general terms described in this section.
This summary and any description of units in the applicable prospectus supplement, information incorporated by reference or free writing prospectus is subject to and is qualified in its entirety by reference to the unit agreement, collateral arrangements and depositary arrangements, if applicable. We will file each of these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this prospectus is a part on or before the time we issue a series of units. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” above for information on how to obtain a copy of a document when it is filed.
The applicable prospectus supplement, information incorporated by reference or free writing prospectus may describe:
| · | 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 for the issuance, payment, settlement, transfer, or exchange of the units or of the securities composing the units; |
| · | whether the units will be issued in fully registered or global form; and |
| · | any other terms of the units. |
The applicable provisions described in this section, as well as those described under “—Description of Debt Securities,” “—Description of Capital Stock” and “—Description of Warrants” above, will apply to each unit and to each security included in each unit, respectively.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed charges for the periods indicated. For purposes of determining the ratio of earnings to fixed charges, earnings consist of income before provision for income taxes plus fixed charges. Fixed charges comprise interest expense.
| | | Three | | | | | | | | | | | | | | | | |
| | | Months | | | | | | | | | | | | | | | | |
| | | Ended | | | | | | | | | | | | | | | | |
| | | March 31, | | | Year Ended December 31, | |
| | | 2010 | | | 2009 | | | 2008 | | | 2007 | | | 2006 | | | 2005 | |
| | | (in thousands) | |
| | | | | | | | | | | | | | | | | | | |
| Pre-tax income (loss) | | $ | (4,529 | ) | | $ | (10,620 | ) | | $ | (8,041 | ) | | $ | (5,958 | ) | | $ | (2,686 | ) | | $ | (1,494 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | |
| Fixed charges | | $ | 82 | | | $ | 257 | | | $ | 122 | | | $ | 236 | | | $ | 15 | | | $ | 43 | |
| | | | | | | | | | | | | | | | | | | | | | | | | |
| Accretion on redeemable convertible preference shares in subsidiary | | $ | 66 | | | $ | 178 | | | $ | 38 | | | $ | — | | | $ | — | | | $ | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | |
Ratio of earnings to fixed charges(1) | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | |
| Deficiency of earnings to fixed charges | | $ | 4,595 | | | $ | 10,798 | | | $ | 8,079 | | | $ | 5,958 | | | $ | 2,686 | | | $ | 1,494 | |
(1) | These ratios are based solely on historical financial information, and no pro forma adjustments have been made. The Company has never generated earnings to cover fixed charges. |
Unless otherwise indicated in the applicable prospectus supplement, information incorporated by reference or free writing prospectus, we intend to use the net proceeds from the sale of securities for general corporate purposes.
We may sell the securities offered by this prospectus from time to time in one or more transactions, including without limitation:
| · | underwriters or dealers for public offering, through agents, directly to purchasers or through underwriters; |
| · | through broker-dealers (acting as agent or principal); |
| · | directly by us to purchasers (including our affiliates and stockholders), through a specific bidding or auction process, a rights offering, or otherwise; |
| · | through a combination of any such methods of sale. The name of any such underwriters, dealers or agents involved in the offer and sale of the securities, the amounts underwritten and the nature of its obligation to take the securities will be specified in the applicable prospectus supplement. We have reserved the right to sell the securities directly to investors on our own behalf in those jurisdictions where we are authorized to do so. The sale of any such methods of sale; or |
| · | through any other methods described in a prospectus supplement. |
| The distribution of securities may be effected, from time to time, in one or more transactions, including: |
| · | block transactions (which may involve crosses) and transactions on the OTC Bulletin Board or any other organized market where the securities may be traded; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement; |
| · | ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
| · | sales “at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; and |
| · | sales in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
The securities may be soldeffected in transactions (a) on any national or international securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, (b) in the over-the-counter market, (c) in transactions otherwise than on such exchanges or in the over-the-counter market or (d) through the writing of options.
We and our agents and underwriters, may offer and sell the securities at a fixed price or prices whichthat may be changed, or at market prices prevailing at the time of sale, at prices relatingrelated to thesuch prevailing market prices or at negotiated prices. The considerationsecurities may be cashoffered on an exchange, which will be disclosed in the applicable
prospectus supplement. We may, from time to time, authorize dealers, acting as our agents, to offer and sell the securities upon such terms and conditions as set forth in the applicable prospectus supplement.
If we use underwriters to sell securities, we will enter into an underwriting agreement with them at the time of the sale to them. In connection with the sale of the securities, underwriters may receive compensation from us in the form of underwriting discounts or another form negotiatedcommissions and may also receive commissions from purchasers of the securities for whom they may act as agent. Any underwriting compensation paid by the parties. Agents,us to underwriters or broker-dealersagents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the applicable prospectus supplement to the extent required by applicable law. Underwriters may be paidsell the securities to or through dealers, and such dealers may receive compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions from the underwriters or commissions (which may be changed from time to be received from us ortime) from the purchasers of the securities. for whom they may act as agents.
Dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensationany discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act. Unless otherwise indicated in the applicable prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase debt securities as a principal, and may then resell the debt securities at varying prices to be determined by the dealer.
If suchso indicated in the prospectus supplement, we will authorize underwriters, dealers or agents were deemed to solicit offers by certain specified institutions to purchase offered securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will be underwriters, they may b e subject to statutoryany conditions set forth in the applicable prospectus supplement and the prospectus supplement will set forth the commission payable for solicitation of such contracts. The underwriters and other persons soliciting such contracts will have no responsibility for the validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled, under agreements entered into with us, to indemnification against and contribution towards certain civil liabilities, including any liabilities under the Securities Act.
WeTo facilitate the offering of securities, certain persons participating in the offering may also make direct sales through subscription rights distributed to our existing stockholders on a pro rata basis, which mayengage in transactions that stabilize, maintain, or may not be transferable. In any distribution of subscription rights to our stockholders, if allotherwise affect the price of the securities. These may include over-allotment, stabilization, syndicate short covering transactions and penalty bids. Over-allotment involves sales in excess of the offering size, which creates a short position. Stabilizing transactions involve bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate short covering transactions involve purchases of securities are not subscribed for, we may then sellin the unsubscribed securities directlyopen market after the distribution has been completed in order to third parties or may engagecover syndicate short positions. Penalty bids permit the services of one or more underwriters, dealers or agents, including standby underwriters to sellreclaim selling concessions from dealers when the unsubscribed securities originally sold by the dealers are purchased in covering transactions to third parties.
Some or allcover syndicate short positions. These transactions may cause the price of the securities that we offer through this prospectussold in an offering to be higher than it would otherwise be. These transactions, if commenced, may be discontinued by the underwriters at any time.
Any securities other than our common stock issued hereunder may be new issues of securities with no established trading market. Any underwriters or agents to or through whom we sell oursuch securities are sold for public offering and sale may make a market in thosesuch securities, but theysuch underwriters or agents will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you ofNo assurance can be given as to the liquidity of or continuedthe trading marketsmarket for any such securities. The amount of expenses expected to be incurred by us in connection with any issuance of securities that we offer.
Agents may, from time to time, solicit offers to purchase the securities. If required, we will namebe set forth in the applicable prospectus supplement, document incorporated by reference or free writing prospectus, as applicable, any agent involved in the offer or sale of the securities and set forth any compensation payable to the agent. Unless otherwise indicated, any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the securities covered by this prospectus may be deemed to be an underwriter of the securities.
If underwriters are used in an offering, 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 a fixed public offering price or at varying prices determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for the sale is reached. The applicable prospectus supplement will set forth the managing underwriter or underwriters , as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions, including compensationsupplement. Certain of the underwriters, and dealers and the public offering price, if applicable. This prospectus, the applicable prospectus supplement and any applicable free writing prospectus will be used by the underwriters to resell the securities.
If a dealer is used in the sale of the securities, we, or an underwriter, will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement, document incorporated by reference, or free writing prospectus, as applicable, the name of the dealer and the terms of the transactions.
We may directly solicit offers to purchase the securities and may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters with respect to any resale of the securities. To the extent required, the prospectus supplement, document incorporated by reference or free writing prospectus, as applicable, will describe the terms of any such sales, including the terms of any bidding or auction process, if used.
Agents, underwriters and dealers may be entitled under agreements which may be entered into with us to indemnification by us against specified liabilities, including liabilities incurred under the Securities Act, or to contribution by us to payments they may be required to make in respect of such liabilities. If required, the prospectus supplement, document incorporated by reference or free writing prospectus, as applicable, will describe the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers or agents and their affiliatesassociates may be customers of, engage in transactions with, orand perform services for, us orand certain of our subsidiaries or affiliates in the ordinary course of business.
During such time as we may be engaged in a distribution of the securities laws of some states, the securities offeredcovered by this prospectus may be soldwe are required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes us, any affiliated purchasers, and any broker-dealer or other person who participates in those states only through registeredsuch distribution from bidding for or licensed brokerspurchasing, or dealers.
Anyattempting to induce any person participatingto bid for or purchase, any security which is the subject of the distribution until the entire distribution is complete. Regulation M also restricts bids or purchases made in order to stabilize the price of a security in connection with the distribution of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisionssecurity. All of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock. These restrictionsforegoing may affect the marketability of our common stock and the abilityshares of any person or entity to engage in market-making activities with respect to our common stock.
Certain persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities will occur, they will be described in the applicable prospectus supplement.
In compliance with the guidelines of the Financial Industry Regulatory Authority (“FINRA”), the aggregate maximum discount, commission or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8% of any offering pursuant to this prospectus and any applicable prospectus supplement, as the case may be.
If more than 10% of the net proceeds of any offering of securities made under this prospectus will be received by FINRA members participating in the offering or affiliates or associated persons of such FINRA members, the offering will be conducted in accordance with FINRA Conduct Rule 5110(h).
To the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution.
The validity and legality of the securities offered hereby and certain other legal matters will be passed upon for us by McDonald Carano Wilson, LLP, Reno, Nevada, will pass upon the validity of the securities offered hereby.Nevada.
The consolidated financial statements and the related financial statement schedules, incorporated in this prospectus by reference from the Company’s Annual Report on Form 10-K have been audited by Rowbotham & CompanySingerLewak LLP, an independent registered public accounting firm, have audited our financial statements for the years ended December 31, 2013 and 2012, as stated in their reports, which are incorporated herein by reference. Such financial statementsreport appearing in the Form 10-K filed with the SEC on March 14, 2014 (which report expresses an unqualified opinion and financial statement schedulesincludes an explanatory paragraph relating to the Company’s ability to continue as a going concern), and have been so incorporatedincluded in reliance upon the reportsreport of such firm given upon their authority as experts in accounting and auditing.
$25,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
PROSPECTUS
, 2010
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEMItem 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.Other Expenses of Issuance and Distribution.
The following table sets forthis an itemized statement of expenses of the estimated fees and expensesCompany in connection with the issuance and distributiondelivery of the securities being registered hereby, other than underwriting discounts and commissions. All of the amounts shown are estimated, except for the SEC registration and FINRA fees.
| EXPENSE | | AMOUNT | |
| | | | |
| SEC registration fee | | $ | 3,486 | |
| Printing expenses | | | * | |
| Listing fees | | | * | |
| Trustee fees and expenses | | | * | |
| Accounting fees and expenses | | | * | |
| Legal fees and expenses | | | * | |
| Miscellaneous fees and expenses | | | * | |
| | | | | |
| Total | | $ | 3,486 | |
______________________
| SEC registration fee | | $ | 1,783 | |
| Accounting fees and expenses* | | | 4,000 | |
| Legal fees and expenses* | | | 10,000 | |
| Miscellaneous expenses* | | | 1,000 | |
| Total | | $ | 16,783 | |
_______________
| * | Estimated solely forThese fees will be dependent on the purposestypes of securities offered and number of offerings and, therefore, cannot be estimated at this Item. Actual expenses may vary.time. |
ITEMItem 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.Indemnification of Directors and Officers.
Nevada Revised Statutes (“NRS”) Sections 78.7502 and 78.751 provide us with the power to indemnify any of our directors, officers, employees and agents. The person entitled to indemnification must have conducted himself in good faith, and must reasonably believe that his conduct was in, or not opposed to, our best interests. In a criminal action, the director, officer, employee or agent must not have had reasonable cause to believe that his conduct was unlawful.
Under NRS Section 78.751, advances for expenses may be made by agreement if the director or officer affirms in writing that he has met the standards for indemnification and will personally repay the expenses if it is determined that such officer or director did not meet those standards.
Our bylaws include an indemnification provision under which we have the power to indemnify, to the extent permitted under Nevada law, our current and former directors and officers, or any person who serves or served at our request for our benefit as a director or officer of another corporation or our representative in a partnership, joint venture, trust or other enterprise, against all expenses, liability and loss reasonably incurred by reason of being or having been a director, officer or representative of ours or any of our subsidiaries. We may make advances for expenses upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he/she is not entitled to be indemnified by us. If Section 2115 of the CGCLCalifornia General Corporation Law is applicable to us, th ethe laws of California also will govern.
Our articles of incorporation provide a limitation of liability such that no director or officer shall be personally liable to us or any of our stockholders for damages for breach of fiduciary duty as a director or officer, involving any act or omission of any such director or officer, provided there was no intentional misconduct, fraud or a knowing violation of the law, or payment of dividends in violation of NRS Section 78.300.
We have entered into separate indemnification agreements with our directors and officers which would require us, among other things, to indemnify them against certain liabilities which may arise by reason of their status or service as directors or officers to the fullest extent permitted by law. At present, there is no pending litigation or proceeding involving any of our directors or officers of regarding which indemnification is sought, nor are we aware of any threatened litigation that may result in claims for indemnification. We also maintain insurance policies that indemnify our directors and officers against various liabilities, including liabilities arising under the Securities Act, that might be incurred by any director or officer in his or her capacity as such.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of ours under Nevada law or otherwise, we have been advised the opinion of the Securities and Exchange Commission is that such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event a claim for indemnification against such liabilities (other than payment by us for expenses incurred or paid by a director, officer or controlling person of ours in successful defense of any action, suit, or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of approp riate jurisdiction, the question of whether such indemnification by it is against public policy in the Securities Act and will be governed by the final adjudication of such issue.
ITEMItem 16. EXHIBITS.
Exhibit No. | | Description |
| | |
1.1* | | Form of Underwriting Agreement with respect to Debt Securities |
| | |
1.2* | | Form of Underwriting Agreement with respect to Common Stock |
| | |
1.3* | | Form of Underwriting Agreement with respect to Preferred Stock |
| | |
1.4* | | Form of Underwriting Agreement with respect to Warrants |
| | |
1.5* | | Form of Underwriting Agreement with respect to Units |
| | |
2.1 | | Agreement and Plan of Merger and Reorganization, dated as of May 31, 2007, by and among WBSI, WaferGen Acquisition Corp., and Wafergen, Inc. (incorporated by reference to Exhibit 2.1 to the Registrant’s periodic report on Form 8-K filed on June 5, 2007). |
| | |
2.2 | | Certificate of Merger of WaferGen Acquisition Corp. with and into Wafergen, Inc., dated May 31, 2007 (incorporated by reference to Exhibit 2.2 to the Registrant’s periodic report on Form 8-K filed on June 5, 2007). |
| | |
4.1 | | Form of Indenture (including Form of Debt Securities) |
| | |
4.2* | | Form of Specimen Common Stock Certificate |
| | |
4.3* | | Form of Specimen Preferred Stock Certificate |
| | |
4.4* | | Form of Certificate of Designation of Preferred Stock |
| | |
4.5* | | Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to purchase Debt Securities |
| | |
4.6* | | Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to purchase Common Stock |
| | |
4.7* | | Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to purchase Preferred Stock |
| | |
4.8* | | Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to purchase Units |
| | |
4.9* | | Form of Unit Agreement (including Form of Unit Certificate) |
| | |
4.10* | | Form of Rights Agreement (including Form of Rights Certificate) |
| | |
5.1 | | Opinion of McDonald Carano Wilson LLP |
| | |
12.1 | | Statement regarding computation of ratio of earnings to fixed charges |
| | |
23.1 | | Consent of McDonald Carano Wilson LLP (included in Exhibit 5.1) |
| | |
23.2 | | Consent of Rowbotham & Company LLP |
| | |
24.1 | | Powers of Attorney (included on signature page to this registration statement) |
| | |
25.1* | | Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of Debt Trustee (to be filed prior to any issuance of Debt Securities) |
_____________
* | To be filed as an amendment or as an exhibit to a document filed under the Exchange Act and incorporated by reference into this registration statement. |
The exhibits required to be filed as a part of this Registration Statement are listed in the Exhibit Index attached hereto and incorporated herein by reference.
ITEMItem 17. UNDERTAKINGS.Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants, pursuant to the provisions described under Item 15 or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification by it is against public policy as expressed in the Securities Act 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 and will be governed by the final adjudication of such issue.
The undersigned Registrantregistrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 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 the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Regi stration Fee” table in the effective registration statement; | (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
(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; | (ii) | to reflect in the prospectus any acts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this 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 a prospectus filed with the SEC pursuant to Rule 424(b) under the Securities Act 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 of Registration 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 this registration statement or any material change to such information in this registration statement; |
provided, however, that paragraphs (1)subparagraphs (i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphssubparagraphs is contained in periodic reports filed with or furnished to the CommissionSEC by the Registrantregistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, that are incorporated by reference in thethis registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration, by means of a post-effective amendment, any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Eachif the registrant is relying on Rule 430B: (A) each prospectus filed by the Registrantregistrant 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) Each (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 registrat ionregistration statement to which thethat 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(ii) if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be 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 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 first use, 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 date of first use.
(5) 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 the undersigned Registrantregistrant undertakes that in a primary offering of securities of the undersigned Registrantregistrant 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 Registrantregistrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Anyany preliminary prospectus or prospectus of the undersigned Registrantregistrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Anyany free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrantregistrant or used or referred to by the undersigned Registrant;
registrant; (iii) Thethe portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrantregistrant or its securities provided by or on behalf of the undersigned Registrant;registrant; and
(iv) Anyany other communication that is an offer in the offering made by the undersigned Registrantregistrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’sregistrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in thethis 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.
(7) To supplementThat for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus afterfiled as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the expirationregistrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as 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.time it was declared effective.
(8) To use its best effortsThat, for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to distribute prior to the opening of bids, to prospective bidders, underwriters, and dealers,be a reasonable number of copies of a prospectus which at that time meets the requirements of Section 10(a) of the Act, andnew registration statement relating to the securities offered at competitive bidding, as contained intherein, and the registration statement, together with any supplements thereto, and (2) to file an amendment to the registration statement reflecting the results of bidding, the terms of the reoffering and related matters to the extent required by the applicable form, not later than the first use, authorized by the issuer after the opening of bids, of a prospectus relating to the securities offered at competitive bidding, unless no further public offering of such securities by the issuer and no reoffering of such securities by the purchasers is proposedat that time shall be deemed to be made.the initial bona fide offering thereof.
(9) 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 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
(10) That, insofar as indemnification for liabilities arising under the Securities ActTable of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, 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 wi ll, 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.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d)the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the Securities Exchange Act of 1934, the registrantrequirements for filing on Form S-3 and has duly caused this prospectusRegistration Statement to be signed on its behalf by the undersigned, thereunto duly authorized.authorized, in the City of Fremont, State of California, on January 27, 2015.
| | WAFERGEN BIO-SYSTEMS, INC. | |
| | By: | /s/ Alnoor Shivji | |
Date: May 27, 2010 | | Alnoor ShivjiIVAN TRIFUNOVICH | |
| | | Chairman, President and Ivan Trifunovich | |
| | Chief Executive Officer and President | |
KNOW ALL PERSONS BY THESE PRESENTS , that eachPOWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Alnoor Shivji asMichael P. Henighan and Ivan Trifunovich and each of them, his true and lawful attorney-in-fact and agent, each with full power of substitution and re-substitution,resubstitution, severally, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-3,registration statement, any subsequent registration statements pursuant to Rule 462 of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-factattorneys-in-fact and agent,agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith,and about the premises, as fully to all intents and purposes as he might or could d odo in person, hereby ratifying and confirming all that said attorney-in-factattorneys-in-fact and agentagents, or any of them or of their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.
Pursuant to the requirements of the Securities Exchange Act of 1934,1933, this Registration Statement has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| SIGNATURE | | TITLE | | DATE |
/s/ Alnoor Shivji IVAN TRIFUNOVICH | | Chairman, President and Chief Executive Officer (Principal Executive Officer)and President
| | MayJanuary 27, 20102015 |
Alnoor Shivji
Ivan Trifunovich | | (Principal Executive Officer) | | |
| | | | |
/s/ Hector BrushMICHAEL P. HENIGHAN | | Chief Financial Officer and Vice President of Finance | | January 27, 2015 |
| Michael P. Henighan | | (Principal Financial Officer and Principal Accounting Officer) | | May 27, 2010 |
Hector Brush
| | | | |
/s/ Robert CoradiniDR. R. DEAN HAUTAMAKI | | Director | | MayJanuary 27, 20102015 |
Robert Coradini
Dr. R. Dean Hautamaki | | | | |
| | | Director | | |
Dr. Robert Hariri
/s/ MAKOTO KANESHIRO | | Director | | January 27, 2015 |
| Makoto Kaneshiro | | | | |
| | | | |
/s/ Dr. R. Dean HautamakiJOEL KANTER | | Director | | MayJanuary 27, 20102015 |
Dr. R. Dean Hautamaki
Joel Kanter | | | | |
/s/ Joel Kanter | | Director | | May 27 2010 |
Joel Kanter
| | | | |
/s/ Makoto KaneshiroWILLIAM MCKENZIE | | Director | | MayJanuary 27, 20102015 |
Makoto Kaneshiro
William McKenzie | | | | |
| | | | |
/s/ Nadine SmithROBERT SCHUEREN | | Director | | MayJanuary 27, 20102015 |
Nadine SmithRobert Schueren | | | | |
Exhibit Index
| | | | | | | Incorporated by Reference |
Exhibit Number | | Exhibit Description | | Filed Herewith | | Form | | Period Ending | | Exhibit | | Filing Date |
| | | | | | | | | | | | | |
| 2.1 | | Asset Purchase Agreement dated January 6, 2014, by and between Wafergen, Inc. and IntegenX Inc. | | | | S-1/A | | | | 2.1 | | 1/27/2014 |
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| 3.1 | | Amended and Restated Articles of Incorporation of the Company, dated January 31, 2007 | | | | 8-K | | | | 3.1 | | 2/1/2007 |
| | | | | | | | | | | | | |
| 3.2 | | Certificate of Amendment to the Amended and Restated Articles of Incorporation of the Company | | | | 8-K | | | | 3.1 | | 8/28/2013 |
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| 3.3 | | Certificate of Designation of the Series 1 Convertible Preferred Stock | | | | 8-K | | | | 3.2 | | 8/28/2013 |
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| 3.4 | | Certificate of Withdrawal of Certificate of Designation of the Series A-1 Convertible Preferred Stock and the Series A-2 Convertible Preferred Stock | | | | 8-K | | | | 3.3 | | 8/28/2013 |
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| 3.5 | | Amended and Restated Bylaws of WaferGen Bio-systems, Inc. | | | | 8-K | | | | 3.1 | | 11/18/2014 |
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| 4.1 | | Form of Warrants to purchase shares of Common Stock of the Company, issued July 7, 2010, to investors in the Company’s July 2010 offering of units of securities | | | | 8-K | | | | 4.1 | | 7/8/2010 |
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| 4.2 | | Form of Warrant to purchase shares of Common Stock of the Company, issued July 7, 2010, to placement agents and certain related parties in connection with the Company’s July 2010 offering of units of securities | | | | 10-Q | | 6/30/2010 | | 10.3 | | 8/16/2010 |
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| 4.3 | | Warrant to purchase shares of Common Stock of the Company, issued December 7, 2010, to Oxford Finance Corporation | | | | 8-K | | | | 10.2 | | 12/13/2010 |
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| 4.4 | | Form of Warrant to purchase shares of Common Stock of the Company, issued August 27, 2013, to investors in the Company’s August 2013 exchange offering | | | | 8-K | | | | 4.1 | | 8/28/2013 |
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| 4.5 | | Form of Warrants to purchase shares of Common Stock of the Company issued to investors in the Company’s August and September 2013 private placement offering of units of securities | | | | 8-K | | | | 4.1 | | 8/28/2013 |
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| 4.6 | | Form of Warrant to purchase shares of Common Stock of the Company issued to the placement agent and certain related parties in connection with the Company’s August and September 2013 private placement offering of units of securities | | | | 8-K | | | | 4.2 | | 8/28/2013 |
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| 4.7 | | Form of Promissory Note in favor of WaferGen Biosystems (M) Sdn. Bhd. dated August 15, 2013 | | | | S-1 | | | | 4.10 | | 10/9/2013 |
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| 4.8 | | Form of Amendment to Common Stock Purchase Warrant (Exchange Transaction) issued August 27, 2013, to investors in the Company’s August 2013 exchange offering | | | | S-1 | | | | 4.11 | | 5/28/2014 |
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| 4.9 | | Form of Amendment to Common Stock Purchase Warrant (Private Placement Transaction) issued to investors in the Company’s August and September 2013 private placement offering of units of securities | | | | S-1 | | | | 4.10 | | 10/9/2013 |
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| 4.10 | | Form of Amendment to Common Stock Purchase Warrant (Placement Agent Warrants) issued to the placement agent and certain related parties in connection with the Company’s August and September 2013 private placement offering of units of securities | | | | S-1 | | | | 4.10 | | 10/9/2013 |
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| 4.11 | | Form of Warrant to purchase shares of Common Stock of the Company, issued August 27, 2014, to investors in the Company’s August 2014 public offering | | | | S-1/A | | | | 4.15 | | 8/19/2014 |
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| 4.12 | | Form of Underwriter Warrant to purchase shares of Common Stock of the Company, issued August 27, 2014, to underwriters and certain related parties in the Company’s August 2014 public offering | | | | S-1/A | | | | 4.16 | | 7/18/2014 |
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| 4.13 | | Form of Common Stock Certificate | | | | S-1/A | | | | 4.14 | | 7/18/2014 |
Exhibit No. | | | | | | Incorporated by Reference |
Exhibit Number | | Exhibit Description | | Filed Herewith | | Form | | Period Ending | | Exhibit | | Filing Date |
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1.1*4.14 | | Form of Underwriting Agreement with respect to Debt SecuritiesPreferred Stock Certificate* | | | | | | | | | | |
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1.2*4.15 | | Form of Underwriting Agreement with respectIndenture relating to Common Stockthe issuance from time to time in one or more series of debentures, notes, bonds or other evidence of indebtedness | | X | | | | | | | | |
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1.3*4.16 | | Form of Underwriting Agreement with respect to Preferred StockSenior Debt Security* | | | | | | | | | | |
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1.4*4.17 | | Form of Underwriting Agreement with respect to WarrantsSubordinated Debt Security* | | | | | | | | | | |
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1.5*4.18 | | Form of Underwriting Agreement with respect to UnitsWarrant* | | | | | | | | | | |
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2.1 | | Agreement and Plan | | | | | | | |
| 4.19 | | Form of Merger and Reorganization, dated as of May 31, 2007, by and among WBSI, WaferGen Acquisition Corp., and Wafergen, Inc. (incorporated by reference to Exhibit 2.1 to the Registrant’s periodic report on Form 8-K filed on June 5, 2007).Unit Agreement* | | | | | | | | | | |
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2.2 | | Certificate of Merger of WaferGen Acquisition Corp. with and into Wafergen, Inc., dated May 31, 2007 (incorporated by reference to Exhibit 2.2 to the Registrant’s periodic report on Form 8-K filed on June 5, 2007). |
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4.1 | | Form of Indenture (including Form of Debt Securities) |
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4.2* | | Form of Specimen Common Stock Certificate |
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4.3* | | Form of Specimen Preferred Stock Certificate |
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4.4* | | Form of Certificate of Designation of Preferred Stock |
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4.5* | | Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to purchase Debt Securities |
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4.6* | | Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to purchase Common Stock |
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4.7* | | Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to purchase Preferred Stock |
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4.8* | | Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to purchase Units |
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4.9* | | Form of Unit Agreement (including Form of Unit Certificate) |
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4.10* | | Form of Rights Agreement (including Form of Rights Certificate) |
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| 5.1 | | Opinion of McDonald Carano Wilson LLP |
| X | | | | | | | | |
12.1 | | Statement regarding computation of ratio of earnings to fixed charges |
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| 23.1 | | Consent of McDonald Carano Wilson LLP (included in Exhibit 5.1)Independent Registered Public Accounting Firm | | X | | | | | | | | |
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| 23.2 | | Consent of Rowbotham & Company LLPIndependent Auditor with respect to the Abbreviated Financial Statements the Apollo Product Line. | | X | | | | | | | | |
| | | | | | | | | | | | |
| 23.3 | | Letter of Consent from McDonald Carano Wilson LLP (included in Exhibit 5.1) | | X | | | | | | | | |
| | | | | | | | | | | | |
| 24.1 | | PowersPower of Attorney (included on signature page to this registration statement)hereto) | | X | | | | | | | | |
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25.1*25.1 | | Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, of Debt Trustee (to be filed prior to any issuance of Debt Securities)as amended** | | | | | | | | | | |
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_____________* To be filed, if necessary, with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement.
* | To be filed as an amendment or as an exhibit to a document filed under the Exchange Act and incorporated by reference into this registration statement. |
** To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
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