As filed with the Securities and Exchange Commission on March 31, 2011
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
DATARAM CORPORATION
_____________________________________________________________________________
(Exact name of registrant as specified in its charter)
New Jersey 22-1831409
_____________________________________________________________________________
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 7528, Princeton, NJ 08543
_____________________________________________________________________________
(Address of principal executive offices) (Zip Code)
(609) 799-0071
_____________________________________________________________________________
(Registrant's telephone number, including area code)
Agent For Service
MARK E. MADDOCKS
Dataram Corporation
186 Princeton-Hightstown Road
West Windsor, New Jersey 08550
(609) 799-0071
With Copies To:
THOMAS J. BITAR, ESQ.
Dillon, Bitar & Luther, L.L.C.
200 Park Avenue, Suite 301
Florham Park, NJ 07932
(973) 539-3100
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
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, 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, 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. [ ]
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [x]
CALCULATION OF REGISTRATION FEE
Title of Each Class of Proposed Maximum Amount of
Securities to be Registered Aggregate Registration Fee
Offering Price
Offering:
Common Stock,
$1.00 par value per share (2) -
Debt Securities (2) -
Warrants (2) -
Units (2) -
Total Offering $20,000,000.00 $2,322.00(3)
(1) There are being registered hereunder such indeterminate number of
shares of common stock, such indeterminate principal amount of debt
securities, such indeterminate number of warrants to purchase common stock
or debt securities, and such indeterminate number of units, as shall have an
aggregate initial offering price not to exceed $20,000,000.00. If any debt
securities are issued at an original issue discount, then the offering price
of such debt securities shall be in such greater principal amount as shall
result in an aggregate initial offering price not to exceed $20,000,000.00,
less the aggregate dollar amount of all securities previously issued
hereunder. Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder. The proposed maximum
initial offering price per unit will be determined, from time to time, by
the registrant in connection with the issuance by the registrant of the
securities registered hereunder. The securities registered also include such
indeterminate number of shares of common stock and amount of debt securities
as may be issued upon conversion of or exchange for debt securities that
provide for conversion or exchange, upon exercise of warrants or pursuant to
the anti-dilution provisions of any such securities. In addition, pursuant
to Rule 416 under the Securities Act of 1933, as amended, the shares being
registered hereunder include such indeterminate number of shares of common
stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar
transactions.
(2) The proposed maximum aggregate offering price per class of
security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered
hereunder and is not specified as to each class of security pursuant to
General Instruction II(D) of Form S-3 under the Securities Act of 1933, as
amended.
(3) Calculated pursuant to Rule 457(o) under the Securities Act of
1933, as amended, based on the proposed maximum aggregate offering price.
The registrant hereby amends this registration statement on such date as may
be necessary to delay its effective date until we shall further 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 or until this registration statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be changed. We
will not sell the securities described in this document until the
registration statement filed with the Securities and Exchange Commission
is declared effective. This prospectus is not an offer to sell these
securities, nor are we soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED March 31, 2011
Dataram Corporation
$20,000,000.00
Debt Securities
Common Stock
Warrants
Units
This prospectus provides you with a general description of debt and
equity securities that we may offer and sell from time to time, in one or
more series or issuances. Each time we sell securities we will provide a
prospectus supplement that will contain specific information about the terms
of that sale and may add to or update the information in this prospectus.
You should carefully read this prospectus and the applicable prospectus
supplement as well as any documents incorporated or deemed to be
incorporated in this prospectus before you invest in any of our securities
offered hereby. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
Dataram Corporation may offer and sell securities directly to
purchasers or through one or more underwriters, dealers and/or agents on a
continuous or delayed basis. For additional information on the methods of
sale, you should refer to the section entitled "Plan of Distribution." If
any underwriters or agents are involved in the sale of any securities with
respect to which this prospectus is being delivered, the names of such
underwriters or agents and any applicable discounts or commissions and over-
allotment options will be set forth in the prospectus supplement. The price
to the public of such securities and the net proceeds we expect to receive
from such sale will also be set forth in a prospectus supplement.
Our common stock is listed on The Nasdaq Capital Market under the
symbol "DRAM." On March 28, 2011, the last reported sale price of our common
stock on The Nasdaq Capital Market was $2.19.
Investing in our common stock involves risk. See "Risk Factors" on page 6.
You should carefully review the risks and uncertainties described under the
heading "Risk Factors" contained in the applicable prospectus supplement and
under similar headings in the documents that are incorporated by reference
in this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon
the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
The date of this prospectus is March 31, 2011
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you
with additional information or information different from that contained in
this prospectus. The information contained or incorporated by reference in
this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of
securities offered by this prospectus. Our business, financial condition,
results of operations and prospects may have changed since that date.
In this prospectus, the "Company", "Dataram", "we", "us", and "our" refer to
Dataram Corporation and its subsidiaries. Our fiscal year ends on April 30
of each calendar year. For example, fiscal year 2010 refers to the year
ended April 30, 2010. Dataram is a registered trademark of Dataram
Corporation. This prospectus contains product names, trade names and
trademarks of Dataram and other organizations.
TABLE OF CONTENTS
Page
About this Prospectus............................................. 3
Special Note Regarding Forward-Looking Statements ................ 4
Business Summary ................................................. 5
Risk Factors...................................................... 6
Use of Proceeds .................................................. 9
Dilution of Existing Common Stock ................................ 9
Description of Common Stock ...................................... 9
Description of Debt Securities ................................... 10
Description of Warrants .......................................... 19
Description of Units ............................................. 20
Plan of Distribution ............................................. 21
Anti-takeover Effects of Provisions of Our Restated Certificate of
Incorporation and By-Laws ...................................... 23
New Jersey Shareholders Protection Act ........................... 24
Legal Matters .................................................... 24
Experts .......................................................... 25
Where You Can Find More Information .............................. 25
Information Incorporated by Reference ............................ 25
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission (the "SEC" or "Commission") using a
"shelf" registration process. Under this shelf process, we may sell:
Debt securities;
Common stock;
Warrants; and
Units
either separately or in units, in one or more offerings. This prospectus
provides you with a general description of those securities. We will offer
our securities in amounts, at prices and on terms to be determined at the
time we offer such securities. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or
change information contained in this prospectus. Before purchasing any
securities, you should carefully read this prospectus and the applicable
prospectus supplement and any applicable free writing prospectus together
with the additional information described under the headings "Where You Can
Find More Information" and "Information Incorporated by Reference." Under
no circumstances should the delivery to you of this prospectus or any
offering or sales made pursuant to this prospectus create any implication
that the information contained in this prospectus is correct as of any time
after the date of this prospectus.
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus and the information incorporated by reference include
forward-looking statements, within the meaning of Section 27A of the
Securities Act of 1933, or the Securities Act, and Section 21E of the
Securities Exchange Act of 1934, or the Exchange Act. These statements are
based on management's current expectations or predictions of future results
or events. We make these forward-looking statements in reliance on the safe
harbor provisions provided under the Private Securities Litigation Reform
Act of 1995.
All statements, other than statements of historical fact, included in this
prospectus and information incorporated by reference which relate to
performance, development or activities that we expect or anticipate will or
may happen in the future, are forward-looking statements. Other forward-
looking statements may be identified by the use of forward-looking words
such as "believe," "expect," "may," "might," "will," "should," "seek,"
"could," "approximately," "intend," "plan," "estimate," or "anticipate" or
the negative of those words or other similar expressions.
Forward-looking statements involve inherent risks and uncertainties and are
based on numerous assumptions. They are not guarantees of future
performance. A number of important factors could cause actual results to
differ materially from those in the forward-looking statement. Some factors
include:
- our ability to obtain financing or sell assets and achieve levels
of revenue and cost reductions that are adequate to support our
capital and operating requirements;
- our ability to remain competitive and a leader in our industries
and our future growth, our industries, and the economy in general;
- our ability to achieve structural and material cost reductions
without impacting product development or manufacturing execution;
- expected improvements in our product and technology development
programs;
- our ability to successfully develop, introduce, market and qualify
new products;
- our ability to identify and acquire suitable acquisition targets
and difficulties in integrating recent or future acquisitions into our
operations;
- other risks and uncertainties described in our filings with the SEC
such as: cancellations, rescheduling, or delays in product shipments;
manufacturing capacity constraints; lengthy sales and qualification
cycles; difficulties in the production process; changes in
semiconductor industry growth; increased competition; delays in
developing and commercializing new products; and other factors.
Forward-looking statements contained herein are made only as of the date
made, and we do not undertake any obligation to update them to reflect
events or circumstances after the date of this prospectus to reflect the
occurrence of unanticipated events.
Business Summary
We are a developer, manufacturer and marketer of large capacity memory
products primarily used in high performance network servers and
workstations. We provide customized memory solutions for original equipment
manufacturers (OEMs) and compatible memory for leading brands including
Dell, HP, IBM and Sun Microsystems. We also manufacture a line of memory
products for Intel and AMD motherboard based servers. We have developed and
are continuing the development of a line of high performance storage caching
products (our "XcelaSAN" product line). XcelaSAN is a unique intelligent
Storage Area Network ("SAN") optimization solution designed to deliver
substantive application performance improvement to applications such as
Oracle, SQL and VMware. XcelaSAN augments existing storage systems by
transparently applying intelligent caching algorithms that serve the most
active block-level data from high-speed storage, creating an intelligent,
virtual solid state SAN, allowing organizations to dramatically increase the
performance of their business-critical applications without the costly
hardware upgrades or over-provisioning of storage typically found in current
solutions for increased performance. We have made and are continuing to make
significant investments in research and development in XcelaSAN.
Our memory products are sold worldwide to OEMs, distributors, value-
added resellers and end-users. We have a manufacturing facility in the
United States with sales offices in the United States, Europe and Japan.
We are an independent memory manufacturer specializing in high capacity
memory and competes with several other large independent memory
manufacturers as well as the OEMs mentioned above. The primary raw material
used in producing memory boards is dynamic random access memory (DRAM)
chips. The purchase cost of DRAMs is the largest single component of the
total cost of a finished memory board. Consequently, average selling prices
for computer memory boards are significantly dependent on the pricing and
availability of DRAM chips.
On March 31, 2009, we acquired certain assets of Micro Memory Bank,
Inc. (MMB), a privately held corporation. MMB is a manufacturer of legacy to
advanced solutions in laptop, desktop and server memory products. The
acquisition expanded our memory product offerings and routes to market.
Our principal executive office is located at 186 Princeton Road
(Route 571), West Windsor, New Jersey 08550, our telephone number is (609)
799-0071, our fax is (609) 799-6734 and our website is located at
http://www.dataram.com. Proxy Statements, Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, and all
amendments thereto, are available on this website free of charge. For
specific information about our company, our products or the markets we
serve, please visit our website at http://www.dataram.com. The information
contained in or linked to our website is not part of this prospectus.
RISK FACTORS
Investing in our securities involves risks. You should carefully read and
consider the risk factors and other disclosures relating to any investment
in securities issued by Dataram Corporation set forth below, as well as
those described in the SEC reports incorporated by reference herein, as
updated by annual, quarterly and other reports and documents we file with
the SEC after the date of this prospectus and that are also incorporated by
reference herein. Before making an investment decision, you should
carefully consider those risks as well as other information we include or
incorporate by reference in this prospectus and the applicable prospectus
supplement. The risks and uncertainties we have described are not the only
ones facing our company. Additional risks and uncertainties not presently
known to us or that we currently consider immaterial may also affect our
business operations. To the extent a particular offering implicates
additional risk, we will include a discussion of those risks in the
applicable prospectus supplement.
WE MAY NEED TO OBTAIN ADDITIONAL WORKING CAPITAL FOR CONTINUED RESEARCH
AND DEVELOPMENT. The development of the XcelaSAN product line has required
and will continue to require substantial capital investment. We believe
hat we have obtained sufficient financing for the continued development of
the products through fiscal 2011. However, such financing may not be
sufficient for our purposes and additional sources of financing may not be
available if needed. If we require and are unable to raise additional
funds, we may need to delay, scale-back or eliminate some or all of our
research and product development programs and/or license third parties to
develop and commercialize products or technologies that we would otherwise
seek to develop and commercialize ourselves.
WE MAY HAVE TO SUBSTANTIALLY INCREASE OUR WORKING CAPITAL REQUIREMENTS
IN THE EVENT OF DRAM ALLOCATIONS. Over the past 20 years, availability of
DRAMs has swung back and forth from oversupply to shortage. In times of
shortage, we have been forced to invest substantial working capital
resources in building and maintaining inventory. At such times we have
bought DRAMs in excess of our customers' needs in order to ensure future
allocations from DRAM manufacturers. In the event of a shortage, we may not
be able to obtain sufficient DRAMs to meet customers' needs in the short
term, and we may have to invest substantial working capital resources in
order to meet long-term customer needs.
WE COULD SUFFER LOSSES IF DRAM PRICES DECLINE SUBSTANTIALLY. We are at
times required to maintain substantial inventories during periods of
shortage and allocation. Thereafter, during periods of increasing
availability of DRAMs and rapidly declining prices, we have been forced to
write down inventory. There can be no assurance that we will not suffer
losses in the future based upon high inventories and declining DRAM prices.
OUR PRODUCTS MAY VIOLATE OTHERS' PATENTS. Certain of our products
are designed to be used with proprietary computer systems built by
various OEM manufacturers. We often have to comply with the OEM's
proprietary designs which may be patented, now or at some time in the
future. OEMs have, at times, claimed that we have violated their patent
rights by adapting our products to meet the requirements of
their systems. It is our policy to, in unclear cases, either obtain an
opinion of patent counsel prior to marketing, or obtain a license from the
patent holder. We are presently licensed by Sun Microsystems and Silicon
Graphics to sell memory products for certain of their products. However,
there can be no assurance that product designs will not be created in the
future which will, in fact, be patented and which patent holders will
require the payment of substantial royalties as a condition for our
continued presence in the segment of the market covered by the patent or
they may not give us a license. Nor can there be any assurance that our
existing products do not violate one or more existing patents.
WE MAY LOSE AN IMPORTANT CUSTOMER. During fiscal 2010, the largest ten
customers accounted for approximately 34% of our revenues and one
customer accounted for 11% of our revenues. There can be no assurance that
one or more of these customers will not cease or materially decrease their
business with us in the future and that our financial performance will not
be adversely affected thereby.
SALES DIRECTLY TO OEM'S CAN MAKE OUR REVENUES, EARNINGS, BACKLOG AND
INVENTORY LEVELS UNEVEN. Revenue and earnings from OEM sales may become
uneven as order sizes are typically large and often a completed order cannot
be shipped until released by the OEM, e.g., to meet a "just in time"
inventory requirement. This may occur at or near the end of an accounting
period. In such case, revenues and earnings could decline for the period
and inventory and backlog could increase.
WE FACE COMPETITION FROM OEMs. In the compatibles market we sell our
products at a lower price than OEMs. Customers will often pay some premium
for the "name brand" product when buying additional memory and OEMs seek to
exploit this tendency by having a high profit margin on memory products.
However, individual OEMs can change their policy and price memory products
competitively. While we believe that with our manufacturing efficiency and
low overhead we still would be able to compete favorably with OEMs, in such
an event profit margins and earnings would be adversely affected. Also,
OEMs could choose to use "free memory" as a promotional device in which case
our ability to compete would be severely impaired.
WE FACE COMPETITION FROM DRAM MANUFACTURERS. DRAM manufacturers not
only sell their product as discreet devices, but also as finished memory
modules. They primarily sell these modules directly to OEMs and large
distributors and as such compete with us. There can be no assurance that
DRAM manufacturers will not expand their market and customer base, and our
profit margins and earnings could be adversely affected.
THE MARKET FOR OUR PRODUCTS MAY NARROW OVER TIME. The principal market
for our memory products consists of the manufacturers, buyers and owners of
workstations and enterprise servers, classes of machines lying between large
mainframe computers and personal computers. Personal computers are
increasing in their power and sophistication and, as a result, are now
filling some of the computational needs traditionally filled by
workstations. The competition for the supply of after-market memory
products in the PC industry is very competitive and to the extent we compete
in this market we can be expected to have lower profit margins. There can
be no assurance that this trend will not continue in the future, and that
our financial performance will not be adversely affected.
A PORTION OF OUR OPERATIONS IS DESIGNED TO MEET THE NEEDS OF THE VERY
COMPETITIVE INTEL AND AMD PROCESSOR-BASED MOTHERBOARD MARKET. In addition
to selling server memory systems, we develop, manufacture and market a
variety of memory products for motherboards that are Intel or AMD processor
based. Many of these products are sold to OEMs and incorporated into
computers and other equipment. This is an intensely competitive market with
high volumes but lower margins.
WE MAY MAKE UNPROFITABLE ACQUISITIONS. We actively seek to acquire
complementary products and related intellectual property. The
possibility exists that an acquisition will be made at some time in the
future. Uncertainty surrounds all acquisitions and it is possible that a
particular acquisition may not result in a benefit to shareholders,
particularly in the short-term. In addition, there can be no assurance that
the recently acquired business of MMB will be, or remain, a profitable
operating unit of ours or that expected savings from having a larger
consolidated business operation will occur.
THE INVESTMENTS WE MAKE IN RESEARCH AND DEVELOPMENT MAY NOT LEAD TO
PROFITABLE NEW PRODUCTS. We have implemented a strategy to introduce
new and complementary products into our offerings portfolio, and expect to
spend substantial sums of money on research and development of such possible
new products. These research and development expenditures may not result in
the identification or exploitation of any products that can be profitably
sold by us.
WE MAY BE ADVERSELY AFFECTED BY EXCHANGE RATE FLUCTUATIONS. A portion
of our accounts receivable and a portion of our expenses are denominated in
foreign currencies. These proportions change over time. As a result, our
revenues and expenses may be adversely affected, from time to time, by
changes in the relationship of the dollar to various foreign currencies on
foreign exchange markets. We do not currently hedge our foreign currency
risks.
WE MAY INCUR INTANGIBLE ASSET AND GOODWILL IMPAIRMENT CHARGES WHICH
COULD HARM OUR PROFITABILITY. We periodically review the carrying values of
our intangible assets and goodwill to determine whether such carrying values
exceed the fair market value. Our goodwill is subject to an annual review
for goodwill impairment. If impairment testing indicates that the carrying
value exceeds its fair value, the intangible assets or goodwill is deemed
impaired. Accordingly, an impairment charge would be recognized in the
period identified, which could reduce our profitability.
OUR STOCK HAS LIMITED LIQUIDITY. Although our stock is publicly
traded, it has been observed that this market is "thin." As a result, the
common stock may trade at a discount to what would be its value if the stock
enjoyed greater liquidity.
WE ARE SUBJECT TO THE NEW JERSEY SHAREHOLDERS PROTECTION ACT. This
statute has the effect of prohibiting any "business combination" - a very
broadly defined term - with any "interested shareholder" unless the
transaction is approved by the Board of Directors at a time before the
interested shareholder had acquired a 10% ownership interest. This
prohibition of "business combinations" is for five years after the
shareholder became an "interested shareholder" and continues after that time
period subject to certain exceptions. A practical consequence of this
statute is that a hostile acquisition of our company is unlikely to occur
and hostile transactions which might be of benefit to our shareholders are
unlikely to occur.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, we will
use the net proceeds from the sale of securities for one or more of the
following:
repayment of debt;
acquisitions;
capital expenditures;
redemption or repurchase of any debt outstanding; and
working capital and general corporate purposes.
Pending any specific application, we may initially invest funds in
marketable short-term, interest-bearing securities.
DILUTION OF EXISTING COMMON STOCK
Information (if any) regarding the securities offered will be included in
the relevant prospectus supplement.
DESCRIPTION OF COMMON STOCK
The following is a description of our common stock. It does not purport to
be complete and is subject to, and qualified in its entirety by, the
provisions of our Restated Certificate of Incorporation and By-Laws, forms
of which have previously been filed and are incorporated by reference into
this prospectus, and by the applicable provisions of New Jersey law. See
"Anti-takeover Effects of Provisions of Our Restated Certificate of
Incorporation and By-Laws" for more information regarding the provisions
of our Restated Certificate of Incorporation and By-Laws that could
effect an extraordinary corporate transaction.
General Matters
Our authorized capital stock consists of 54,000,000 shares of common stock,
$1.00 par value per share. As of March 28 2011, we had 8,928,309 shares of
common stock issued and outstanding. We do not have any authorized
preferred stock.
Holders of common stock are entitled to one vote per share on matters to be
voted upon by the shareholders of the Company. The holders of common stock
are entitled to receive ratably such dividends, if any, as may be declared
by the Board of Directors out of funds legally available therefore. In the
event of our liquidation, dissolution or winding up, the holders
of common stock are entitled to share ratably in all assets remaining after
payment of liabilities. The common stock has no preemptive, redemption,
conversion or other subscription rights. The outstanding shares of
common stock are, and the shares offered by us in any offering will be, when
issued and paid for, fully paid and nonassessable.
Transfer Agent and Registrar
The Transfer Agent and Registrar for our common stock is American Stock
Transfer and Trust Company, New York, New York.
Listing
Our shares of common stock are quoted on The Nasdaq Capital Market under the
symbol "DRAM".
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the debt securities sets
forth certain general terms and provisions of the debt securities to which
any prospectus supplement may relate. The particular terms of the debt
securities offered by any prospectus supplement and the extent, if any, to
which these general provisions may apply to those debt securities will be
described in the prospectus supplement relating to those debt securities.
Accordingly, for a description of the terms of a particular issue of debt
securities, reference must be made to both the prospectus supplement
relating thereto and to the following description.
General
We may issue debt securities from time to time in one or more series. The
debt securities will be general obligations of Dataram Corporation. The debt
securities may be issued on a secured or unsecured, senior or subordinated
basis. In the event that any series of debt securities will be subordinated
to other indebtedness that we have outstanding or may incur, the terms of
the subordination will be set forth in the prospectus supplement relating to
the subordinated debt securities. Debt securities may be issued under one or
more indentures between us and one or more trustees named in the relevant
prospectus supplement, which we refer to as the trustee. Any statements
made in this prospectus relating to the indenture and the debt securities to
be issued under the indenture are summaries of certain terms and provisions
of the form of indenture that has been filed as Exhibit 4.2 to the
registration statement of which this prospectus forms a part and are not
complete. You should read the indenture for provisions that may be
important to you. In addition, we will file as exhibits to an amendment to
the registration statement of which this prospectus is a part, or will
incorporate by reference from a current report on Form 8-K that we file with
the SEC, as applicable, any supplemental indentures or other agreements that
describe the terms of the series of debt we are offering before the issuance
of the related series debt. You should therefore consult those supplemental
agreements to obtain amended or updated information regarding the relevant
series of debt.
The prospectus supplement relating to a particular series of debt securities
will describe the terms of such debt securities being offered, including:
- the title;
- the maturity date;
- the interest rate, if any, and the method for calculating the
interest rate;
- the interest payment dates and the record dates for the interest
payments;
- any mandatory or optional redemption terms or prepayment,
conversion, and sinking fund terms;
- provisions regarding amendment of the terms of any indenture or
other agreement pursuant to which debt is issued;
- the place where we will pay principal and interest;
- if other than denominations of $1,000 or multiples of $1,000 in
excess thereof, the denominations the debt securities will be
issued in;
- whether the debt securities will be issued in the form of global
securities or certificates;
- additional provisions, if any, relating to defeasance;
- the currency or currencies, if other than the currency of the
United States, in which principal and interest will be paid;
- any United States federal income tax consequences;
- the dates on which premium, if any, will be paid;
- our right, if any, to defer payment of interest and the maximum
length of this deferral period;
- any listing on a securities exchange;
- limits on aggregate principal amount;
- terms of subordination of any subordinated debt securities;
- a description of the collateral securing the debt obligations,
if any:
- events of default, cure periods and remedies available;
- information regarding the trustee, if any;
- the initial public offering price; and
- other specific terms, including any additional events of default
or covenants.
We may, from time to time, without notice to or the consent of registered
holders of a particular series of debt securities, create and issue further
securities ranking pari passu with that series of debt securities in all
respects (or in all respects except for the payment of interest accruing
prior to the issue date of such further debt securities or except for the
first payment of interest following the issue date of such further debt
securities) and so that such further debt securities shall be consolidated
and form a single series with that particular series of debt securities and
shall have the same terms as to status, redemption or otherwise as that
series of debt securities.
We can issue an unlimited amount of debt securities under the indenture that
may be in one or more series with the same or various maturities, at par, at
a premium, or at a discount. The indenture does not limit our ability to
issue convertible or subordinated debt securities. Any conversion or
subordination provisions of a particular series of debt securities will be
set forth in the officer's certificate or supplemental indenture related to
that series of debt securities and will be described in the relevant
prospectus supplement. Such terms may include provisions for conversions,
either mandatory, at the option of the holder or at our option, in which
case the number of shares of common stock, preferred stock or other
securities to be received by the holders of debt securities would be
calculated as of a time and in the manner stated in the prospectus
supplement.
The debt securities will be issuable only in fully registered form without
coupons or in the form of one or more global securities, as described below
under "Global Securities". Unless the prospectus supplement specifies
otherwise, debt securities denominated in U.S. dollars will be issued only
in denominations of U.S.$1,000 and any integral multiple of U.S.$1,000 in
excess thereof. The prospectus supplement relating to debt securities
denominated in a foreign or composite currency will specify the authorized
denominations.
If the amount of payments of principal of and premium, if any, or any
interest on debt securities of any series is determined with reference to
any type of index or formula or changes in prices of particular securities
or commodities, the federal income tax consequences, specific terms and
other information with respect to these debt securities and this index or
formula, securities or commodities will be described in the relevant
prospectus supplement.
If the principal of and premium, if any, or any interest on debt securities
of any series are payable in a foreign or composite currency, the
restrictions, elections, federal income tax consequences, specific terms and
other information with respect to such debt securities and such currency
will be described in the relevant prospectus supplement.
Payment of principal of and premium, if any, on debt securities will be made
in the designated currency against surrender of any debt securities at the
Corporate Trust Office of the trustee in The City of New York. Unless
otherwise indicated in the prospectus supplement, payment of any installment
of interest on debt securities will be made to the person in whose name a
relevant debt security is registered at the close of business on the regular
record date for such interest. Unless otherwise indicated in the prospectus
supplement, payments of such interest will be made at the Corporate Trust
Office of the trustee in The City of New York or by a check in the
designated currency mailed to the holder at such holder's registered address.
Debt securities may be issued as original issue discount securities to be
offered and sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other special considerations
applicable to any original issue discount securities will be described in
the relevant prospectus supplement. "Original issue discount security" means
any debt security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof upon the occurrence of an event of default and the
continuation thereof.
Covenants
Consolidation, Merger and Sale of Assets
Unless otherwise provided in a prospectus supplement, we will agree under
the indenture that we will not consolidate with or merge into, or convey,
transfer or lease all or substantially all of our properties and assets to,
any Person (a "Successor Person"), and will not permit any Person to merge
into us in a transaction in which we are not the surviving entity, unless:
(i) the Successor Person (if not Dataram) is a corporation, limited
liability company, partnership or trust organized and validly existing under
the laws of any domestic jurisdiction and assumes our obligations on any
outstanding debt securities and under the indenture;
(ii) immediately after giving effect to the transaction, and treating any
Indebtedness which becomes our obligation as a result of the transaction as
having been incurred by us at the time of the transaction, no event of
default and no event which, after notice or lapse of time or both, would
become an event of default, shall have occurred and be continuing; and
(iii) the trustee receives an officers' certificate and an opinion of
counsel stating that such action complies with this covenant.
Events of Default
The indenture specifies that each of the following will constitute an event
of default with respect to the debt securities of a particular series:
(a) failure to pay principal of any debt security of that series at its
maturity;
(b) failure to pay any interest on any debt security of that series when
due, continued for 30 days;
(c) failure to deposit any sinking fund payment, when and as due by the
terms of that series;
(d) failure to perform any covenant of ours applicable to that series in the
indenture, continued for 60 days after written notice of such failure is
given by the trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of that series, as provided in the
indenture; and
(e) certain events in bankruptcy, insolvency or reorganization.
If an event of default (other than an event of default described in clause
(e) above) shall occur and be continuing, either the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt
securities of that series by notice as provided in the indenture may declare
the principal amount of such series of the debt securities to be due and
payable immediately. If an event of default described in clause (e) above
shall occur, the principal amount of all the outstanding debt securities of
that series will automatically, and without any action by the trustee or any
holder, become immediately due and payable. After any such acceleration, but
before a judgment or decree for payment of the money due, the holders of a
majority in aggregate principal amount of the outstanding debt securities of
a particular series may, under certain circumstances, rescind and annul such
acceleration if all events of default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the
indenture. For information as to waiver of defaults, see "Modification and
Waiver."
Subject to the provisions of the indenture relating to the duties of the
trustee in case an event of default shall occur and be continuing, the
trustee will be under no obligation to exercise any of its rights or powers
under the indenture at the request or direction of any of the holders,
unless such holders shall have offered to the trustee reasonable indemnity.
Subject to such provisions for the indemnification of the trustee, the
holders of a majority in aggregate principal amount of the outstanding debt
securities of that series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee
or exercising any trust or power conferred on the trustee with respect to
such series of the debt securities.
No holder of a debt security will have any right to institute any proceeding
with respect to the indenture, or for the appointment of a receiver or a
trustee, or for any other remedy thereunder, unless:
(i) such holder has previously given to the trustee written notice of a
continuing event of default with respect to such series of the debt
securities;
(ii) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made written request, and
such holder or holders have offered reasonable indemnity, to the trustee to
institute such proceeding as trustee; and
(iii) the trustee has failed to institute such proceeding, and has not
received from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series a direction inconsistent with
such request, within 60 days after such notice, request and offer. However,
such limitations do not apply to a suit instituted by a holder of a debt
security for the enforcement of payment of the principal of or interest on
such debt security on or after the applicable due date specified in such
debt security.
Modification and Waiver
Together with the trustee, we may modify the indenture without the consent
of any holder for certain purposes, including evidencing the succession of
another person to us and such person's assumption of our obligations under
the indenture, adding to our covenants or events of default, establishing
forms or terms of debt securities, curing ambiguities and other purposes
which do not adversely affect the holders in any material respect.
Other modifications and amendments of the indenture may be made by us and
the trustee with the consent of the holders of at least a majority in
aggregate principal amount of each series of the outstanding debt securities
that is affected by such modification or amendment, all holders of all such
affected series voting together as one class.
No such modification or amendment may, without the consent of the holder of
each outstanding debt security affected thereby:
(a) change the stated maturity of the principal of, or any installment of
interest on, or the redemption price of, any such debt security;
(b) reduce the principal amount of or interest on, any such debt security;
(c) change currency of payment of principal of or interest on, any such debt
security;
(d) impair the right to institute suit for the enforcement of any payment on
any such debt security;
(e) reduce the percentage in principal amount of outstanding debt securities
of a particular series, the consent of whose holders is required for
modification or amendment of the indenture, or for waiver of compliance with
certain provisions of the indenture or waiver of certain defaults; or
(f) modify such provisions with respect to modification and waiver.
The holders of at least a majority in principal amount of each series of the
outstanding debt securities that is affected by such waiver, all holders of
all such affected series voting together as one class, may waive our
compliance with certain restrictive provisions of the indenture, and may
waive any past default under the indenture, except a default in the payment
of principal or interest and certain covenants and provisions of the
indenture which cannot be amended without the consent of the holder of each
outstanding debt security affected by such default.
Defeasance and Discharge; Covenant Defeasance
Unless the terms of a particular series provide otherwise, we may elect, at
our option at any time, to have the indenture provisions relating to
defeasance and discharge of indebtedness, or relating to defeasance of
certain restrictive covenants in the indenture, applied to any series of the
outstanding debt securities.
Defeasance and Discharge
The indenture provides that upon our exercise of our option to have the
provisions relating to defeasance and discharge applied to a particular
series of the debt securities, we will be discharged from all our
obligations with respect to such series of the debt securities (except for
certain obligations to exchange or register the transfer of debt securities,
to replace stolen, lost or mutilated debt securities, to maintain paying
agencies and to hold moneys for payment in trust) upon the deposit in trust
for the benefit of the holders of the debt securities of such series of
money or U.S. government obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms,
will provide money in an amount sufficient to pay the principal of and
interest on the debt securities of such series at maturity in accordance
with the terms of the indenture and such debt securities. Such defeasance
or discharge may occur only if, among other things, we have delivered
to the trustee an opinion of counsel to the effect that we have received
from, or there has been published by, the United States Internal Revenue
Service a ruling, or there has been a change in tax law, in either case to
the effect that holders of the debt securities of such series will not
recognize gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax
on the same amount, in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge were not to occur.
Defeasance of Certain Covenants
The indenture provides that, upon our exercise of our option to have the
provisions relating to defeasance of certain restrictive covenants applied
to a particular series of the debt securities, we may, with respect to such
series, omit to comply with certain restrictive covenants, including those
described under "-Consolidation, Merger and Sale of Assets," and the
occurrence of certain events of default, which are described above in clause
(d) under "Events of Default," will be deemed not to be or result in an
event of default, in each case with respect to such series.
We, in order to exercise such option, will be required, among other things:
(1) to deposit, in trust for the benefit of the holders of such series of
the debt securities, money or U.S. government obligations, or both, which,
through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to
pay the principal of and interest on such series of the debt securities at
maturity in accordance with the terms of the indenture and such debt
securities, and
(2) to deliver to the trustee an opinion of counsel to the effect that
holders of such series of the debt securities will not recognize gain or
loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax
on the same amount, in the same manner and at the same times as would have
been the case if such deposit and defeasance were not to occur.
In the event we exercise this option and the debt securities are declared
due and payable because of the occurrence of any event of default, the
amount of money and U.S. government obligations so deposited in trust would
be sufficient to pay amounts due on that series of the debt securities at
maturity but may not be sufficient to pay amounts due on that series of the
debt securities upon any acceleration resulting from such event of default.
In such case, we would remain liable for such payments.
Regarding the Trustee
The indenture provides that, except during the continuance of an event of
default, the trustee will perform only such duties as are specifically set
forth in the indenture. During the existence of an event of default, the
trustee will exercise such rights and powers vested in it under the
indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise under the circumstances in the conduct of such
person's own affairs.
The indenture and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the rights of the trustee, should
it become a creditor of us, to obtain payment of claims in certain cases or
to realize on certain property received by it in respect of any such claim
as security or otherwise. The trustee is permitted to engage in other
transactions with us or any affiliate of us; provided, however, that if it
acquires any conflicting interest (as defined in the indenture or in the
Trust Indenture Act), it must eliminate such conflict or resign.
The trustee for any debt securities will be set forth in the applicable
prospectus supplement.
Form of Debt Securities
Each debt security will be represented either by a certificate issued in
definitive form to a particular investor or by one or more global securities
representing the entire issuance of securities. Certificated securities in
definitive form and global securities will be issued in registered form.
Definitive securities name you or your nominee as the owner of the security,
and in order to transfer or exchange these securities or to receive payments
other than interest or other interim payments, you or your nominee must
physically deliver the securities to the trustee, registrar, paying agent or
other agent, as applicable.
Global securities name a depositary or its nominee as the owner of the debt
securities represented by these global securities. The depositary maintains
a computerized system that will reflect each investor's beneficial ownership
of the securities through an account maintained by the investor with its
broker/dealer, bank, trust company or other representative, as we explain
more fully below.
Global Securities
We may issue the debt securities in whole or in part in the form of one or
more fully registered global securities that will be deposited with a
depositary or its nominee identified in the prospectus supplement relating
to that series and registered in the name of that depositary or nominee. In
those cases, one or more registered global securities will be issued in a
denomination or aggregate denominations equal to the portion of the
aggregate principal or face amount of the securities to be represented by
registered global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global security may
not be transferred except as a whole by and among the depositary for the
registered global security, the nominees of the depositary or any successors
of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement
with respect to any securities to be represented by a registered global
security will be described in the prospectus supplement relating to those
securities. We anticipate that the following provisions will apply to all
depositary arrangements.
Ownership of beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with the
depositary or persons that may hold interests through participants. Upon the
issuance of a registered global security, the depositary will credit, on its
book-entry registration and transfer system, the participants' accounts with
the respective principal or face amounts of the securities beneficially
owned by the participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts to be
credited. Ownership of beneficial interests in a registered global security
will be shown on, and the transfer of ownership interests will be effected
only through, records maintained by the depositary, with respect to
interests of participants, and on the records of participants, with respect
to interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical delivery
of these securities in definitive form. These laws may impair your ability
to own, transfer or pledge beneficial interests in registered global
securities.
So long as the depositary, or its nominee, is the registered owner of a
registered global security, that depositary or its nominee, as the case may
be, will be considered the sole owner or holder of the securities
represented by the registered global security for all purposes under the
indenture. Except as described below, owners of beneficial interests in a
registered global security will not be entitled to have the securities
represented by the registered global security registered in their names,
will not receive or be entitled to receive physical delivery of the
securities in definitive form and will not be considered the owners or
holders of the securities under the indenture. Accordingly, each person
owning a beneficial interest in a registered global security must rely on
the procedures of the depositary for that registered global security and, if
that person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights of a
holder under the indenture. We understand that under existing industry
practices, if we request any action of holders or if an owner of a
beneficial interest in a registered global security desires to give or take
any action that a holder is entitled to give or take under the indenture,
the depositary for the registered global security would authorize the
participants holding the relevant beneficial interests to give or take that
action, and the participants would authorize beneficial owners owning
through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as
the case may be, as the registered owner of the registered global security.
None of Dataram, the trustee or any agent of Dataram or agent of the trustee
will have any responsibility or liability for any aspect of the records
relating to payments made on account of beneficial ownership interests in
the registered global security or for maintaining, supervising or reviewing
any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a
registered global security, upon receipt of any payment of principal,
premium or interest to holders on that registered global security, will
immediately credit participants' accounts in amounts proportionate to their
respective beneficial interests in that registered global security as shown
on the records of the depositary. We also expect that payments by
participants to owners of beneficial interests in a registered global
security held through participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered
global security is at any time unwilling or unable to continue as depositary
or ceases to be a clearing agency registered under the Exchange Act and a
successor depositary registered as a clearing agency under the Exchange Act
is not appointed by us within 90 days, we will issue securities in
definitive form in exchange for the registered global security that had been
held by the depositary. In addition, we may at any time and in our sole
discretion decide not to have any of the securities represented by one or
more registered global securities. If we make that decision, we will issue
securities in definitive form in exchange for all of the registered global
security or securities representing those securities. Any securities issued
in definitive form in exchange for a registered global security will be
registered in the name or names that the depositary gives to the trustee or
other relevant agent of ours or theirs. It is expected that the depositary's
instructions will be based upon directions received by the depositary from
participants with respect to ownership of beneficial interests in the
registered global security that had been held by the depositary.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase shares of our common stock and/or
debt securities in one or more series together with other securities or
separately, as described in the applicable prospectus supplement.
Below is a description of certain general terms and provisions of the
warrants that we may offer. Particular terms of the warrants will be
described in the warrant agreements and the prospectus supplement to the
warrants.
The applicable prospectus supplement will contain, where applicable,
the following terms of and other information relating to the warrants:
- the title of the warrants;
- the offering price of the warrants;
- the aggregate number of the warrants;
- the currency or currency units in which the offering price, if
any, and the exercise price are payable;
- the designation, amount and terms of the securities purchasable
upon exercise of the warrants;
- if applicable, the exercise price for shares of our common stock
and the number of shares of common stock to be received upon
exercise of the warrants;
- if applicable, the exercise price for our debt securities, the
amount of debt securities to be received upon exercise, and a
description of that series of debt securities;
- the date on which the right to exercise the warrants will begin
and the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the warrants;
- whether the warrants will be issued in fully registered form or
bearer form, in definitive or global form or in any combination
of these forms, although, in any case, the form of a warrant
included in a unit will correspond to the form of the unit and of
any security included in that unit;
- any applicable material U.S. federal income tax consequences;
- the identity of the warrant agent for the warrants and of any
other depositaries, execution or paying agents, transfer agents,
registrars or other agents;
- the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities
exchange;
- if applicable, the date from and after which the warrants and the
common stock and/or debt securities will be separately
transferable;
- if applicable, the minimum or maximum amount of the warrants that
may be exercised at any one time;
- information with respect to book-entry procedures, if any;
- the anti-dilution provisions of the warrants, if any;
- any redemption or call provisions;
- whether the warrants are to be sold separately or with other
securities as parts of units; and
- any additional terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants.
Transfer Agent and Registrar
The transfer agent and registrar for any warrants will be set forth in
the applicable prospectus supplement.
DESCRIPTION OF UNITS
We may issue units consisting of common stock, debt securities and/or
warrants for the purchase of common stock and/or debt securities in one or
more series. In this prospectus, we have summarized certain general features
of the units. We urge you, however, to read the prospectus supplements
related to the series of units being offered, as well as the unit agreements
that contain the terms of the units. In addition, the prospectus supplement
relating to units will describe the terms of any units we issue, including
as applicable:
- the designation and terms of the units and the securities
included in the units;
- the description of the terms of any unit agreement governing the
units;
- any provision for the issuance, payment, settlement, transfer or
exchange of the units;
- the date, if any, on and after which the units may be
transferable separately;
- whether we will apply to have the units traded on a securities
exchange or securities quotation system;
- any material United States federal income tax consequences; and
- how, for United States federal income tax purposes, the purchase
price paid for the units is to be allocated among the component
securities.
We will file as exhibits to an amendment to the registration statement of
which this prospectus is a part, or will incorporate by reference from a
current report on Form 8-K that we file with the SEC, as applicable, the
form of unit agreement, if any, and any supplemental agreements that
describe the terms of the series of units we are offering before the
issuance of the related series of units.
PLAN OF DISTRIBUTION
Any of the securities being offered hereby and in any accompanying
prospectus supplement may be sold in any one or more of the following ways
from time to time:
- directly to purchasers;
- through agents;
- to or through underwriters;
- through dealers;
- directly to our stockholders; or
- through a combination of any such methods of sale.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
We may solicit offers to purchase directly. Offers to purchase securities
also may be solicited by agents designated by us from time to time. Any such
agent involved in the offer or sale of the securities in respect of which
this prospectus is delivered will be named, and any commissions payable by
us to such agent will be set forth, in the applicable prospectus
supplement. Unless otherwise indicated in such prospectus supplement, any
such agent will be acting on a reasonable best efforts basis for the period
of its appointment. Any such agent may be deemed to be an underwriter, as
that term is defined in the Securities Act, of the securities so offered and
sold.
If securities are sold by means of an underwritten offering, we will execute
an underwriting agreement with an underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters, the
respective amounts underwritten and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the applicable prospectus supplement
which will be used by the underwriters to make resales of the securities in
respect of which this prospectus is being delivered to the public. If
underwriters are utilized in the sale of any securities in respect of which
this prospectus is being delivered, such securities will be acquired by the
underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at fixed public
offering prices, at market prices prevailing at the time of sale or at
varying prices determined by the underwriters at the time of sale.
Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
underwriters. If any underwriter or underwriters are utilized in the sale of
securities, unless otherwise indicated in the applicable prospectus
supplement, the underwriting agreement will provide that the obligations of
the underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of such securities will be obligated to
purchase all such securities if any are purchased.
We may grant to the underwriters options to purchase additional securities,
to cover over-allotments, if any, at the initial public offering price (with
additional underwriting commissions or discounts), as may be set forth in
the prospectus supplement relating thereto. If we grant any over-allotment
option, the terms of such over-allotment option will be set forth in the
prospectus supplement for such securities.
If a dealer is used in the sale of the securities in respect of which this
prospectus is delivered, we will sell such securities to the dealer, as
principal. The dealer may then resell such securities to the public at
varying prices to be determined by such dealer at the time of resale. Any
such dealer may be deemed to be an underwriter, as such term is defined in
the Securities Act, of the securities so offered and sold. The name of the
dealer and the terms of the transaction will be set forth in the prospectus
supplement relating thereto.
Offers to purchase securities may be solicited directly by us and the sale
thereof may be made by us directly to institutional investors or others, who
may be deemed to be underwriters within the meaning of the Securities Act
with respect to any resale thereof. The terms of any such sales will be
described in the prospectus supplement relating thereto.
We may offer our equity securities into an existing trading market on the
terms described in the applicable prospectus supplement. Underwriters and
dealers who may participate in any at-the-market offerings will be described
in the prospectus supplement relating thereto.
Agents, underwriters and dealers may be entitled under relevant agreements
with us to indemnification by us against certain liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which such agents, underwriters and dealers may be required to make
in respect thereof.
Any underwriter may engage in stabilizing and syndicate covering
transactions in accordance with Rule 104 under Regulation M. Rule 104
permits stabilizing bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. The underwriters may
over-allot shares of the securities in connection with an offering of
securities, thereby creating a short position in the underwriters' account.
Syndicate covering transactions involve purchases of the securities in the
open market after the distribution has been completed in order to cover
syndicate short positions. Stabilizing and syndicate covering transactions
may cause the price of the securities to be higher than it would otherwise
be in the absence of such transactions. These transactions, if commenced,
may be discontinued at any time.
We may elect to list any series of securities on an exchange but, unless
otherwise specified in the applicable prospectus supplement, we shall not be
obligated to do so. No assurance can be given as to the liquidity of the
trading market for any of the securities.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, us and our subsidiaries in the ordinary
course of business.
We may lend or pledge securities to a financial institution or other third
party that in turn may sell the securities using this prospectus. Such
financial institution or third party may transfer its short position to
investors in our securities or in connection with a simultaneous offering of
other securities offered by this prospectus.
To comply with applicable state securities laws, the securities offered by
this prospectus will be sold, if necessary, in such jurisdictions only
through registered or licensed brokers or dealers. In addition, securities
may not be sold in some states unless they have been registered or qualified
for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
The anticipated date of delivery of securities will be set forth in the
applicable prospectus supplement relating to each offer.
ANTITAKEOVER EFFECTS OF PROVISIONS OF OUR RESTATED CERTIFICATE OF
INCORPORATION AND BY-LAWS
Our by-laws provide that the Board of Directors shall consist of not less
than three or more than fifteen members, with the exact number to be
determined by the vote of not less than a majority of the Board of Directors
from time to time. Unless otherwise required by law, vacancies on the Board
of Directors, including vacancies resulting from an increase in the number
of directors or the removal of directors, may be filled by an affirmative
vote of a majority of the directors then in office. Although shareholders
holding a majority of shares may both appoint directors and remove directors
with or without cause, the ability of the Board of Directors to increase the
number of directors and to appoint directors may make it more difficult to
change the Board of Directors, and should promote the continuity of existing
management. These and other provisions also may have the effect of
deterring, preventing or delaying changes in control or management.
NEW JERSEY SHAREHOLDERS PROTECTION ACT
The New Jersey Shareholders Protection Act, NJSA 14A:10A?1 et seq., which we
refer to as New Jersey Act, prohibits certain New Jersey corporations, such
as Dataram, from entering into certain "business combinations" with an
"interested shareholder" (any person who is the beneficial owner of 10% or
more of such corporation's outstanding voting securities) for five years
after such person became an interested shareholder, unless the business
combination or the interested shareholder's acquisition of stock was
approved by the corporation's Board of Directors prior to such interested
shareholder's stock acquisition date. After the five-year waiting period
has elapsed, a business combination between such corporation and an
interested shareholder will be prohibited unless the business combination is
approved by the holders of at least two-thirds of the voting stock not
beneficially owned by the interested shareholder, or unless the business
combination satisfies the New Jersey Act's fair price provision intended to
provide that all shareholders (other than the interested shareholders)
receive a fair price for their shares.
The New Jersey Act defines "business combination" to include the following
transactions between a corporation or a subsidiary and an interested
shareholder or such interested shareholder's affiliates: (1) the merger or
consolidation of the corporation with the interested shareholder or any
corporation that after the merger or consolidation would be an affiliate or
associate of the interested shareholder; (2) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition to or with the interested
shareholder, which has an aggregate market value equal to 10% or more of the
aggregate market value of all of the assets or of the outstanding stock, or
10% or more of the income of the corporation or its subsidiaries; (3) the
issuance or transfer to the interested shareholder of any stock of the
corporation having an aggregate market value equal to or greater than 5% of
the corporation's outstanding stock; (4) the adoption of a plan or proposal
for the liquidation or dissolution of the corporation proposed by the
interested shareholder; (5) any reclassification of securities proposed by
the interested shareholder that has the effect, directly or indirectly, of
increasing any class or series of stock that is owned by the interested
shareholder; and (6) the receipt by the interested shareholder of any loans
or other financial assistance from the corporation.
The New Jersey Act does not apply to certain business combinations,
including those with persons who acquired 10% or more of the voting power of
the corporation prior to the time the corporation was required to file
periodic reports pursuant to the Exchange Act or prior to the time the
corporation's securities began to trade on a national securities exchange.
LEGAL MATTERS
The validity of the shares of common stock and matters governed by New
Jersey law will be passed upon by Dillon, Bitar & Luther, L.L.C.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K have been audited
by J.H. Cohn LLP, an independent registered public accounting firm, as
stated in their report which is incorporated herein by reference, which
report expresses an unqualified opinion on the consolidated financial
statements. Such financial statements have been so incorporated in
reliance upon the report of such firm given upon their authority as
experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and
copy any document that we file at the Public Reference Room of the SEC
located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain
information on the operation of the Public Reference Room by calling the SEC
at 1-800-SEC-0330. In addition, the SEC maintains an Internet site at
www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically, including
Dataram. Except as expressly set forth under "Information Incorporated by
Reference," we are not incorporating the contents of the SEC website into
this prospectus.
We have filed with the SEC a registration statement on Form S-3 (together
with all amendments and exhibits, the "registration statement") under the
Securities Act of 1933, as amended with respect to the offering of common
stock. This prospectus, which constitutes part of the registration
statement, does not contain all of the information set forth in the
registration statement. Certain parts of the registration statement are
omitted from the prospectus in accordance with the rules and regulations of
the SEC.
Our common stock is listed on The NASDAQ Capital Market and similar
information can be inspected and copied at the offices of the Financial
Industry Regulatory Authority, 1735 K Street, N.W., Washington, D.C. 20006.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference in this prospectus the
information in documents we file with the SEC, which means that we can
disclose important information to you by referring you to those documents.
The information in this prospectus updates (and, to the extent of any
conflict, supersedes) information incorporated by reference that we have
filed with the SEC prior to the date of this prospectus. You should read
all of the information incorporated by reference because it is an important
part of this prospectus.
We incorporate by reference the documents listed below and any future
filings made with the SEC by us under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until we sell all of the securities to
which this prospectus and any supplemental prospectuses relate (other than
filings or portions of filings that are furnished under applicable SEC rules
rather than filed):
- Annual report on Form 10-K for the fiscal year ended April 30,
2010, filed with the SEC on July 29, 2010.
- Definitive Proxy Statement pursuant to Section 14(a) of the
Exchange Act, filed with the SEC on August 17, 2010.
- Quarterly Reports on Form 10-Q for the quarters ended July 31,
2010, October 31, 2010 and January 31, 2011, filed with the SEC
on September 13, 2010, December 13, 2010 and March 16, 2011,
respectively.
- Current Reports on Form 8-K filed with the SEC on September 28,
2010, December 22, 2010 and February 17, 2011.
- The description of our common stock contained in our Registration
Statement on Form 8-A filed with the SEC on January 27, 2000.
You may also find additional information about us, including the documents
mentioned above, on our website at www.dataram.com. The information
included or linked to this website is not a part of this prospectus.
We hereby undertake to provide without charge to each person, including any
beneficial owner, to whom a copy of this prospectus is delivered, upon
written or oral request of any such person, a copy of any and all of the
reports or documents that have been incorporated by reference in this
prospectus, other than exhibits to such documents unless such exhibits have
been specifically incorporated by reference thereto. Requests for such
copies should be directed to our Investor Relations department, at the
following address:
Dataram Corporation
P.O. Box 7528
Princeton, NJ 08543
(609) 799-0071
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated costs and expenses of the sale
and distribution of the securities being registered, all of which are being
borne by the Registrant.
SEC registration fee $2,322.00
Printing and engraving fees $2,500.00
Legal fees and expenses $75,000.00
Accounting fees and expenses $5,000.00
Total $84,822.00
Item 15. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation and By-Laws include
provisions (i) to reduce the personal liability of the Company's directors
for monetary damage resulting from breaches of their fiduciary duty and (ii)
to permit the Company to indemnify its directors and officers to the fullest
extent permitted by New Jersey law, including in circumstances in which
indemnification is otherwise discretionary under New Jersey law. The
Company has obtained directors' and officers' liability insurance that
insures such persons against the costs of defense, settlement, or payment of
a judgment under certain circumstances.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
3(a) Restated Certificate of Incorporation. Incorporated by reference
from Exhibits to an Annual Report on Form 10-K for the year ended
April 30, 2008, filed with the Securities and Exchange Commission, SEC
file number 001-08266, on July 25, 2008.
3(b) By-Laws. Incorporated by reference from Exhibits to an Annual Report
on Form 10-K for the year ended April 30, 2008, filed with the
Securities and Exchange Commission, SEC file number 001-08266, on July
25, 2008.
4(a) Specimen certificate for shares of common stock.*
4(b) Form of Indenture.*
4(c) Form of Debt Security (included in Exhibit 4(b)).*
4(d) Form of Warrant Agreement.**
4(e) Form of Warrant.**
5.1 Opinion of Dillon, Bitar & Luther, L.L.C.*
23(a) Consent of J.H. Cohn LLP.*
23(b) Consent of Dillon, Bitar & Luther, L.L.C. (contained in Exhibit
5.1).*
24 Powers of Attorney (included on the signature pages to this Registration
Statement).*
25 Statement of Eligibility of Trustee for the Debt Securities.***
__________
* Filed herewith.
** To be filed, if necessary, on an exhibit to a post-effective amendment to
this registration statement or as on exhibit to a Current Report on Form 8-K
to be filed by the registrant in connection with a specific offering, and
incorporated herein by reference.
*** To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act.
(b) Financial Statement Schedules.
Not applicable.
Item 17. Undertakings
(a) 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 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
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation 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 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, 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 the 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 purposes of determining liability under the
Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed
prospectus was deemed part of and included in the
registration statement; and
(ii) 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.
(5) If the Registrant is subject to Rule 430C, each prospectus
filed pursuant to Rule 424(b) as part of a registration
statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be a part of
and included in the registration statement as of the date it is
first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that
is part of the registration statement or made in a document or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or made in any such document
immediately prior to such date of first use.
(6) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities: The undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering
required to be filed pursuant to Rule 424 under the
Securities Act of 1933;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material
information about the undersigned registrant or its
securities provided by or on behalf of the undersigned
registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the
purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant'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 the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) With respect to any applicable warrant offering, the undersigned
registrant hereby undertakes to supplement the prospectus, after the
expiration of the subscription period, to set forth the results of
the subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities to be
purchased by the underwriters, and the terms of any subsequent
reoffering thereof. If any public offering by the underwriters is to
be made on terms differing from those set forth on the cover page of
the prospectus, a post-effective amendment will be filed to set
forth the terms of such offering.
(d) With respect to any indenture, the undersigned registrant hereby
undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of section
310 of the Trust Indenture Act ("Act") in accordance with the rules
and regulations prescribed by the Commission under section 305(b)(2)
of the Act.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described under Item 15 above, or otherwise, the registrant has been
advised that in the opinion of Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Dataram Corporation, certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of West Windsor, State
of New Jersey, on the 31st day of March, 2011.
DATARAM CORPORATION
By: /s/ MARK E. MADDOCKS
______________________
Mark E. Maddocks
Vice President, Finance
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes John H. Freeman and Mark E. Maddocks, severally, such
person's true and lawful attorneys-in-fact, with full power of substitution
or resubstitution, for such person and in his name, place and stead, in any
and all capacities, to sign on such person's behalf, individually and in
each capacity stated below, any and all amendments, including post-effective
amendments to this Form S-3, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission
granting unto said attorneys-in-fact, full power and authority to do and
perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant in the capacities indicated, on March 31, 2011.
Date: March 31, 2011 By: /s/ ROGER C. CADY
------------------------------
Roger C. Cady, Chairman of the
Board of Directors
Date: March 31, 2011 By: /s/ JOHN H. FREEMAN
------------------------------
John H. Freeman, President,
Chief Executive Officer and
Director
Date: March 31, 2011 By: /s/ THOMAS A. MAJEWSKI
-------------------------------
Thomas A. Majewski, Director
Date: March 31, 2011 By: /s/ ROSE ANN GIORDANO
-----------------------------
Rose Ann Giordano, Director
Date: March 31, 2011 By: /s/ MARK E. MADDOCKS
------------------------------
Mark E. Maddocks
Vice President, Finance
(Principal Financial & Accounting Officer)