AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 11, 2012
REGISTRATION STATEMENT NO. 333-172865
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POSE-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-1 REGISTRATION STATEMENT ON
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AUGME TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware | | | | 20-0122076 |
(State or other jurisdiction of
incorporation or organization) | | (Primary Standard Industrial
Classification Code Number) | | (IRS Employee Identification No.) |
350 7th Avenue, 2nd Floor
New York, New York 10001
(855) 423-5433
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Paul R. Arena
AUGME TECHNOLOGIES, INC.
350 7th Avenue, 2nd Floor
New York, New York 10001
Phone: (212) 710-9350
Fax: (718) 889-0677
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
Kevin Friedmann, Esq.
RICHARDSON & PATEL LLP
750 Third Avenue
9th Floor
New York, NY 10017
(212) 561-5559
Fax: (917) 591-6898
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO TIMEAFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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, check the following box. x
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. o
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. o
If this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment therto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
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. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o | | Accelerated filer x |
| | |
Non-accelerated filer o (Do not check if a smaller
reporting company) | | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
| | | | | | | | | |
Title of Each Class of Securities to be
Registered | | Amount to be
Registered
(1) | | Proposed
Maximum
Offering
Price Per Share | | Proposed
Maximum
Aggregate
Offering
Price | | Amount of
Registration
Fee | |
| | | | | | | | �� | |
Common Stock | | 2,769,772 | | 3.86 | | 10,691,319 | | 1,241.26 | |
Common Stock underlying Warrants | | 692,443 | | 3.86 | | 2,672,830 | | 310.32 | |
Total | | 3,462,215 | | $ | 3.86 | | $ | 13,364,148 | | $ | 1,551.58 | (4) |
(1) | | 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. |
(2) | | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, based on $3.86, the average of the bid and ask prices of the registrant’s common stock on March 15, 2011. |
(3) | | Calculated in accordance with Rule 457(g) of the Securities Act of 1933. |
(4) | | The registration fee was paid on March 16, 2011. |
| | | | | | | | | | | | | | |
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, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.
EXPLANATORY NOTE
Augme Technologies, Inc. is filing this Post-Effective Amendment Number 2 to its registration statement on Form S-1 to include the signature of its principal accounting officer, which was inadvertently omitted from Post-Effective Amendment No. 1.
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Part II
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of all expenses, all of which we will pay, in connection with the registration of the common stock offered hereby:
| | Amount* | |
SEC registration fee | | $ | 8,707.50 | |
Printing fees | | $ | 500.00 | |
Legal fees | | $ | 15,000.00 | |
Accounting fees and expenses | | $ | 5,000.00 | |
Blue Sky Filing Fees | | $ | 1,000.00 | |
Transfer Agent Fees | | $ | 1,000.00 | |
Miscellaneous | | $ | 500.00 | |
Total | * | $ | 31,707.50 | |
*With the exception of the filing fee, all fees are estimated.
Item 15. Indemnification of Directors and Officers.
We are subject to the laws of Delaware on corporate matters, including its indemnification provisions. Section 145 of the General Corporation Law of Delaware provides that Delaware corporations are empowered, subject to certain procedures and limitations, to indemnify any person against expenses (including attorney’s fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending, or completed action, suit, or proceeding (including a derivative action) in which such person is made a party by reason of his being or having been a director, officer, employee, or agent of the company (each, an “Indemnitee”); provided that the right of an Indemnitee to receive indemnification is subject to the following limitations: (i) an Indemnitee is not entitled to indemnification unless he acted in good faith and in a manner that he reasonably believed to be in or not opposed to the best interests of the company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful, and (ii) in the case of a derivative action, an Indemnitee is not entitled to indemnification in the event that he is judged to be liable to the company (unless and only to the extent that the court determines that the Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the court deems proper). The statute provides that indemnification pursuant to our provisions is not exclusive of other rights of indemnification to which a person may be entitled under any bylaw, agreement, vote of stockholders, or disinterested directors, or otherwise.
Pursuant to Article Eight of our Certificate of Incorporation (“Article Eight”), we are authorized to provide indemnification of (and advancement of expenses to) directors, officers, employees and agents (and any other persons to which Delaware law permits us to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the GCL, subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to action for breach of duty to us, our stockholders and others.
Article Eight also states that our directors shall not be personally liable to us or any stockholder for monetary damages for breach of fiduciary duty as a director, except of any matter in respect of which such director shall be liable under Section 174 of the GCL or shall be liable because the director (1) shall have breached his duty of loyalty to us or our stockholders, (2) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law, or (3) shall have derived an improper personal benefit. Article Eight further states that the liability of our directors shall be eliminated or limited to the fullext extent permitted by the GCL, as amended.
Under Article Eight and Article 6 of our bylaws, any person who was or is made a party or is threatened to be made a party to or is in any way involved in any threatened, pending or completed action suit or proceeding, whether civil, cirminal, administrative or investigative, including any appeal therefrom, by reason of the fact that he
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is or was a director or officer of ours or was serving at our request as a director or officer of another entity or enterprise (including any subsidiary), shall be indemnified and held harmless by us and we are required to advance all expenses incurred by such person in defense of any such proceeding prior to its final determination, to the fullest extent authorized by the GCL. These rights are not exclusive of any other rights to which those seeking indemnification may otherwise be entitled.
Item 16. Exhibits.
Number | | Description |
| | |
5.1 | | Opinion Regarding Legality* |
23.1 | | Consent of Moss Adams LLP* |
23.2 | | Consent of MaloneBailey, LLP * |
23.3 | | Consent of Freedman & Goldberg, P.C. * |
23.4 | | Consent of Richardson & Patel LLP (See Exhibit 5.1)* |
*Previously filed.
Item 17. Undertakings.
The undersigned registrant 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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
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;
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:
A. Each prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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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 section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
5. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, 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 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 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on July 11, 2012.
| AUGME TECHNOLOGIES, INC. |
| | |
| | |
| By: | /s/ Paul R. Arena |
| | Paul R. Arena, Chief Executive Officer |
| | |
| | |
| By: | /s/ Thomas Virgin |
| | Thomas Virgin, Chief Financial Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
Dated: July 11, 2012 | /s/ Paul R. Arena |
| Paul R. Arena, Chief Executive Officer and Director |
| |
| |
Dated: July 11, 2012 | /s/ Ivan Braiker |
| Ivan Braiker, President and Director |
| |
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Dated: July 11, 2012 | /s/ Thomas Virgin |
| Thomas Virgin, Chief Financial Officer and Principal |
| Accounting Officer |
| |
| |
Dated: July 11, 2012 | /s/ John M. Devlin |
| John M. Devlin, Director |
| |
| |
Dated: July 11, 2012 | /s/ Ernest Purcell |
| Ernest Purcell, Director |
| |
| |
Dated: July 11, 2012 | /s/ Todd E. Wilson |
| Todd E. Wilson, Director |
| |
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Dated: July 11, 2012 | /s/ Donald E. Stout |
| Donald E. Stout, Director |
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