As Filed with the Securities and Exchange Commission on November 14, 2005
Registration No. 333-124791
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GRAPHON CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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Delaware 6770 13-3899021
(State of Incorporation) (Primary Standard (I.R.S. Employer
Industrial Identification Number)
Classification Code
Number)
5400 Soquel Avenue, Suite A2
Santa Cruz, California 95062
(800) 472-7466
(Address and Telephone Number of Registrant's Principal Executive Offices)
William Swain
Secretary and Chief Financial Officer
GraphOn Corporation
5400 Soquel Avenue, Suite A2
Santa Cruz, California 95062
(800) 472-7466
(Name, Address and Telephone Number of Agent for Service)
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Copies to:
Ira I. Roxland, Esq.
Sonnenschein Nath & Rosenthal LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 768-6700
Fax: (212) 768-6800
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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 post-effective amendment filed pursuant to Rule 462(d)
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 delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------
Proposed
Maximum Proposed
Amount to Aggregate Maximum Amount of
Title of Each Class of be Price Per Aggregate Registration
Securities to be Registered Registered Unit (1) Offering Price Fee
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Common stock, par value 35,293,993 $ 0.35 $ 12,352,897.55 $ 1,453.94 (3)
$0.0001 per share (2)
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
(2) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement also covers any additional securities that may be offered or issued
in connection with any stock split, stock dividend or similar transaction.
(3) $1,454.03 previously paid.
</FN>
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Pursuant to Rule 429 promulgated under the Securities Act of 1933, the
prospectus forming a part of this Registration Statement on Form S-1 also
relates to (i) the Registrant's Registration Statement on Form S-1 to Form S-3
(Registration No. 333-112758), effective on May 14, 2004; (ii) the Registrant's
Registration Statement on Form S-3 (Registration No. 333-51420), effective on
December 20, 2000; and (iii) the Registrant's Registration Statement on Form S-4
(Registration No. 333-76333), effective on June 15, 1999.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits and Financial Statement Schedules
(a) The following is a list of Exhibits filed herewith as part of the
registration statement:
Exhibit
Number Description of Exhibit
2.1 Agreement and Plan of Merger and Reorganization dated as of
December 3, 2004, between registrant and GraphOn NES Sub, LLC,
a California limited liability company, GraphOn Via SUB III
Inc., a Delaware corporation, Network Engineering Software,
Inc., a California corporation, and Ralph Wesinger (1)
3.1 Amended and Restated Certificate of Incorporation of
Registrant (2)
3.2 Amended and Restated Bylaws of Registrant (2)
4.1 Form of certificate evidencing shares of common stock of
Registrant (3)
4.2 Form of Warrant issued by Registrant on January 29, 2004 (4)
4.3 Form of Warrant issued by Registrant on February 2, 2005 (5)
4.4 Investors Rights Agreement, dated January 29, 2004, by and
among Registrant and the investors named therein (4)
4.5 Investors Rights Agreement, dated February 2, 2005, by and
among Registrant and the investors named therein (5)
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP, including consent
10.1 1996 Stock Option Plan of Registrant (3)
10.2 1998 Stock Option/Stock Issuance Plan of Registrant (2)
10.3 Supplemental Stock Option Agreement, dated as of June 23, 2000
(6)
10.4 Employee Stock Purchase Plan of Registrant (6)
10.5 Lease Agreement between Registrant and Central United Life
Insurance, dated as of October 24, 2003 (4)
10.6 Financial Advisory Agreement, dated January 29, 2004, by and
between Registrant and Orin Hirschman (7)
10.7 Amendment to Financial Advisory Agreement, dated February 2,
2005, by and between Registrant and Orin Hirschman (5)
10.8 Reimbursement Agreement, dated December 10, 2004, by and
between Registrant and AIGH Investment Partners LLC (7)
10.9 Holder Agreement, dated January 31, 2005, by and between
Registrant and the holders named therein (5)
10.10 Non-recourse Secured Promissory Note, dated October 6, 2004,
by and between Registrant and Ralph Wesinger (7)
10.11 Stock Pledge Agreement, dated October 6, 2004, by and between
Registrant and Ralph Wesinger (7)
10.12 Agreement, dated December 16, 2003, by and between Registrant
and Griffin Securities, Inc. (7)
23.1 Consents of Macias Gini & Company LLP*
23.2 Consent of BDO Seidman, LLP*
23.3 Consent of Sonnenschein Nath & Rosenthal LLP (contained in
their opinion included under Exhibit 5.1)
24.1 Power of Attorney (comprises a portion of the signature page
of this Registration Statement)*
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* Previously filed with this Registration Statement
(1) Incorporated by reference from Registrant's Current Report on Form 8-K,
dated December 3, 2004, filed with the SEC on December 9, 2004.
(2) Incorporated by reference from Registrant's Form S-4, file number
333-76333.
(3) Incorporated by reference from Registrant's Form S-1, file number
333-11165.
II-1
(4) Incorporated by reference from Registrant's Annual Report on Form 10-K for
the year ended December 31, 2003.
(5) Incorporated by reference from Registrant's Current Report on Form 8-K,
dated January 31, 2005, filed with the SEC on February 4, 2005.
(6) Incorporated by reference from Registrant's Form S-8, file number
333-40174.
(7) Incorporated by reference from Registrant's Annual Report on Form 10-K for
the year ended December 31, 2004.
(b) Financial Statement Schedules
Schedule II - Valuation and Qualifying Accounts.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Santa Cruz, State of
California, on the 14th day of November, 2005.
GRAPHON CORPORATION
By: /s/ William Swain
--------------------------------
William Swain
Secretary and Chief Financial
Officer
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In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities and
on the dates stated.
SIGNATURE TITLE DATE
- --------- ----- ----
Chairman and Interim Chief
Executive Officer (Principal
* Executive Officer) November 14, 2005
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Robert Dilworth
Secretary and Chief Financial
Officer (Principal Financial
/s/ William Swain and Accounting Officer) November 14, 2005
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William Swain
* Director November 14, 2005
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August P. Klein
* Director November 14, 2005
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Michael Volker
* Director November 14, 2005
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Gordon Watson
* William Swain, pursuant to Powers of Attorney (executed by each of the
officers and directors listed above) by signing his name hereto does hereby
sign and execute this Amendment to the Registration Statement on behalf of
each of the persons referenced above
Date: November 14, 2005 /s/ William Swain
-----------------------------
William Swain
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
2.1 Agreement and Plan of Merger and Reorganization dated as of
December 3, 2004, between registrant and GraphOn NES Sub, LLC,
a California limited liability company, GraphOn Via SUB III
Inc., a Delaware corporation, Network Engineering Software,
Inc., a California corporation, and Ralph Wesinger (1)
3.1 Amended and Restated Certificate of Incorporation of
Registrant (2)
3.2 Amended and Restated Bylaws of Registrant (2)
4.1 Form of certificate evidencing shares of common stock of
Registrant (3)
4.2 Form of Warrant issued by Registrant on January 29, 2004 (4)
4.3 Form of Warrant issued by Registrant on February 2, 2005 (5)
4.4 Investors Rights Agreement, dated January 29, 2004, by and
among Registrant and the investors named therein (4)
4.5 Investors Rights Agreement, dated February 2, 2005, by and
among Registrant and the investors named therein (5)
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP, including consent
10.1 1996 Stock Option Plan of Registrant (3)
10.2 1998 Stock Option/Stock Issuance Plan of Registrant (2)
10.3 Supplemental Stock Option Agreement, dated as of June 23, 2000
(6)
10.4 Employee Stock Purchase Plan of Registrant (6)
10.5 Lease Agreement between Registrant and Central United Life
Insurance, dated as of October 24, 2003 (4)
10.6 Financial Advisory Agreement, dated January 29, 2004, by and
between Registrant and Orin Hirschman (7)
10.7 Amendment to Financial Advisory Agreement, dated February 2,
2005, by and between Registrant and Orin Hirschman (5)
10.8 Reimbursement Agreement, dated December 10, 2004, by and
between Registrant and AIGH Investment Partners LLC (7)
10.9 Holder Agreement, dated January 31, 2005, by and between
Registrant and the holders named therein (5)
10.10 Non-recourse Secured Promissory Note, dated October 6, 2004,
by and between Registrant and Ralph Wesinger (7)
10.11 Stock Pledge Agreement, dated October 6, 2004, by and between
Registrant and Ralph Wesinger (7)
10.12 Agreement, dated December 16, 2003, by and between Registrant
and Griffin Securities, Inc. (7)
23.1 Consents of Macias Gini & Company LLP*
23.2 Consent of BDO Seidman, LLP*
23.3 Consent of Sonnenschein Nath & Rosenthal LLP (contained in
their opinion included under Exhibit 5.1)
24.1 Power of Attorney (comprises a portion of the signature page
of this Registration Statement)*
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* Previously filed with this Registration Statement
(1) Incorporated by reference from Registrant's Current Report on Form 8-K,
dated December 3, 2004, filed with the SEC on December 9, 2004.
(2) Incorporated by reference from Registrant's Form S-4, file number 333-76333.
(3) Incorporated by reference from Registrant's Form S-1, file number 333-11165.
(4) Incorporated by reference from Registrant's Annual Report on Form 10-K for
the year ended December 31, 2003.
(5) Incorporated by reference from Registrant's Current Report on Form 8-K,
dated January 31, 2005, filed with the SEC on February 4, 2005.
(6) Incorporated by reference from Registrant's Form S-8, file number
333-40174.
(7) Incorporated by reference from Registrant's Annual Report on Form 10-K for
the year ended December 31, 2004.