As filed with the Securities and Exchange Commission on May 18, 2009
Registration No. 333-124791
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 7
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)
----------------------------------------------------
Delaware 6770 13-3899021
(State of (Primary Standard Industrial (I.R.S. Employer
Incorporation) Classification Code Number) Identification 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)
Copy to:
Ira I. Roxland
Sonnenschein Nath & Rosenthal LLP
1221 Avenue of the Americas
New York, New York 10020
Telephone: (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 of 1933, 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 of 1933, 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 of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. | |
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer," "accelerated filer"
and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | | Accelerated filer | |
Non-accelerated filer | | Smaller reporting company |X|
(Do not check if a smaller reporting company)
Pursuant to Rule 429 promulgated under the Securities Act of 1933, the
prospectus forming a part of this Post-Effective Amendment No. 7 to Form S-1
also relates to the Registrant's Registration Statement to Form S-3 on Form S-1
(Registration No. 333-112758), effective on May 14, 2004.
Preliminary Prospectus
GRAPHON CORPORATION
30,295,740 Shares of Common Stock
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This prospectus relates to the offer and sale from time to time of up to
30,295,740 shares of our common stock by the persons described in this
prospectus, whom we call the "selling stockholders." Of such 30,295,740 shares,
20,416,540 shares are currently outstanding and 9,879,200 shares are issuable
upon exercise of warrants and options held by certain of the selling
stockholders. The inclusion of these shares in this prospectus does not mean
that the selling stockholders will actually offer or sell any of these shares.
We will receive no proceeds from the sale of any of these shares by the selling
stockholders.
Our common stock is currently quoted on the OTC Bulletin Board under the
symbol "GOJO." The closing bid price of our common stock on May 13, 2009 was
$0.09 per share.
This investment involves risks. You should refer to the discussion of risk
factors, beginning on page 3 of this prospectus.
Neither the Securities and Exchange Commission nor any other regulatory
body has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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, 2009
TABLE of CONTENTS
Page
FORWARD-LOOKING STATEMENTS........................................i
PROSPECTUS SUMMARY................................................1
RISK FACTORS......................................................3
PRICE RANGE OF OUR COMMON STOCK...................................9
SELLING STOCKHOLDERS.............................................10
PLAN OF DISTRIBUTION.............................................14
DESCRIPTION OF OUR SECURITIES....................................16
LEGAL MATTERS....................................................18
EXPERTS..........................................................18
WHERE YOU CAN FIND MORE INFORMATION..............................18
You should rely only on the information contained or incorporated by
reference in this prospectus. Neither we nor the selling shareholders have
authorized anyone else to provide you with different information. If anyone
provides you with different information, you should not rely on it. Neither we
nor the selling shareholders are making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus, or any documents incorporated by
reference herein, is accurate only as of the date on the front cover of the
applicable document. Our business, financial condition, results of operations
and prospects may have changed since that date.
FORWARD-LOOKING STATEMENTS
You should carefully review the information contained in this prospectus
and the reports incorporated by reference herein. In this prospectus and the
reports incorporated by reference herein, we state our beliefs of future events
and of our future financial performance. In some cases, you can identify those
so-called "forward-looking statements" by words such as "may," "will," "should,"
"expects," "plans," "anticipates," "believes," "estimates," "predicts,"
"potential," or "continue" or the negative of those words and other comparable
words. These forward-looking statements are subject to risks and uncertainties
that could cause actual results to differ materially from historical results or
those we anticipate. Factors that could cause actual results to differ from
those contained in the forward-looking statements include those factors set
forth under the section in this prospectus captioned "Risk Factors" as well as
and the other risks and uncertainties discussed in this prospectus and the
reports incorporated by reference herein. Statements included in this prospectus
and the reports incorporated by reference herein are based upon information
known to us as of the respective dates of this prospectus and the reports
incorporated by reference herein, and we assume no obligation to update or alter
our forward-looking statements made in this prospectus and the reports
incorporated by reference herein, whether as a result of new information, future
events or otherwise, except as otherwise required by applicable federal
securities laws.
i
PROSPECTUS SUMMARY
This following summary does not contain all of the information you should
consider in making your investment decision to acquire our common stock. For a
more complete understanding of our company and our common stock, you should read
the more detailed information, including our financial statements and related
notes, included elsewhere in this prospectus or incorporated by reference in
this prospectus. You should carefully consider, among other things, the matters
discussed in "Risk Factors."
Overview
We are developers of business connectivity software, including Unix, Linux
and Windows server-based software, with an immediate focus on web-enabling
applications for use and/or resale by independent software vendors (ISVs),
corporate enterprises, governmental and educational institutions, and others. We
have also made significant investments in intellectual property and have pursued
various means of monetizing such investments. We conduct and manage our business
based on these two business segments which we refer to as our "Software" and
"Intellectual Property" segments, respectively.
Server-based computing, sometimes referred to as thin-client computing, is
a computing model where traditional desktop software applications are relocated
to run entirely on a server, or host computer. This centralized deployment and
management of applications reduces the complexity and total costs associated
with enterprise computing. Our software architecture provides application
developers with the ability to relocate applications traditionally run on the
desktop to a server, or host computer, where they can be run over a variety of
connections from remote locations to a variety of display devices. With our
server-based software, applications can be web enabled, without any modification
to the original application software required, allowing the applications to be
run from browsers or portals. Our server-based technology can web-enable a
variety of Unix, Linux or Windows applications.
Through our acquisition of Network Engineering Solutions, Inc. (NES) in
January 2005, we acquired the rights to 11 patents, which are primarily method
patents that describe software and network architectures to accomplish certain
tasks, as well as other intellectual property rights. During 2005, 2007 and
2008, we initiated litigation against certain companies that we believed
violated one or more of our patents. In December 2007 we entered into a $6.25
million settlement and licensing agreement with one of these companies. In the
fourth quarter of 2008 we recorded an impairment charge of $868,200 against
certain of the patents we acquired from NES. Due to our limited cash
availability, we have determined that we will not be initiating any new
infringement litigation or attempting to seek licensing revenue with respect to
any of the NES patents that were not involved in any of our on-going litigation
as of December 31, 2008.
We are a Delaware corporation, founded in May of 1996. Our headquarters
are located at 5400 Soquel Avenue, Suite A2, Santa Cruz, California, 95062 and
our phone number is 1-800-GRAPHON (1-800-472-7466). Our Internet website is
http://www.graphon.com. The information on our website is not part of this
annual report. We also have offices in Concord, New Hampshire and Irvine,
California.
Recent Developments
During April 2009 we entered into settlement and licensing agreements with
CareerBuilder, LLC and Classified Ventures, LLC, which resolved all legal
disputes between us and them. The aggregate financial effect of these agreements
will be reflected in our operating results for the three and six-month periods
ending June 30, 2009.
The Offering
Common stock offered for sale by the selling
stockholders..................................... 30,295,740 shares (1)
Common stock to be outstanding after this
offering......................................... 57,211,492 shares (1)(2)
(1) Includes 9,629,200 and 250,000 shares issuable upon the exercise of
outstanding warrants and options, respectively, held by the selling
stockholders.
(2) Based upon our issued and outstanding shares of common stock as of March
31, 2009. This number excludes 8,481,683 shares of common stock, which are
issuable upon exercise of our outstanding options. An additional 2,216,839
shares are reserved for future grants under our stock option plans and
32,210 shares are reserved for purchase pursuant to our employee stock
purchase plan.
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RISK FACTORS
Investing in our securities involves risks. Before investing in our
securities, you should carefully consider the risks described below and in our
Annual Report on Form 10-K for the year ended December 31, 2008, as well as the
other information included in, and incorporated by reference in, this
prospectus.
Risks Related to our Business
The current adverse changes in general economic conditions on a global basis
could adversely affect our business, results of operations and financial
condition.
The current economic recession, coupled with continued uncertainty about
future economic conditions, could negatively impact our current and prospective
customers, resulting in delays or reductions in their technology purchases. As a
result, we could experience fewer new orders, fewer renewals, longer sales
cycles, the impact of the slower adoption of newer technologies and increased
price competition, any of which could have a material and adverse impact on our
business, results of operations and financial condition. Continuation of the
current adverse economic conditions also may negatively impact our ability to
collect payment for outstanding debts owed to us by our customers or other
parties with whom we do business. We can not predict the timing, strength or
duration of this severe global economic recession or subsequent recovery.
Our business could be adversely impacted by conditions affecting the
information technology market.
Demand for our products and services can be significantly impacted by the
general demand for business-related information technology, which demand
fluctuates based on numerous factors, including: capital spending levels, the
spending levels and growth of our current and prospective customers, and general
economic conditions. Fluctuations in the demand for our products and services
could have a material adverse effect on our business, results of operations and
financial condition. As a result of the poor general economic and market
conditions, future economic projections for the information technology sector
are uncertain as companies reassess their spending for technology products and
services. If an unfavorable environment for information technology spending
continues, our business, results of operations and financial condition could be
adversely impacted.
We have a history of operating losses and expect these losses to continue, at
least for the near future.
We have experienced significant operating losses since we began
operations. We expect that our Intellectual Property segment will generate an
operating loss in 2009. We project that our software segment will not generate
enough revenue to offset such operating loss, nor are we projecting that our
software segment will be profitable on its own. Consequently, we expect to
report an operating loss on a consolidated basis for 2009. In subsequent
reporting periods, if revenues grow more slowly than anticipated, or if
aggregate operating expenses exceed expectations, we may not become profitable.
Even if we become profitable, we may be unable to sustain such profitability.
We have a limited amount of cash available to fund our operations;
consequently, we may not be able to realize the anticipated benefits of the
patent portfolio we acquired from NES.
Although we entered into a $6.25 million settlement and licensing
agreement with Autotrader.com in December 2007, we have not generated any
further revenue from our patent portfolio since their acquisition from NES in
January 2005. Due to our limited cash availability, we have determined that we
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will not be initiating any new infringement litigation or attempting to seek
licensing revenue with respect to any of the NES patents that were not involved
in any of our on-going litigation as of December 31, 2008. As a result of such
decision, during the fourth quarter of 2008 we recorded an $868,200 non-cash
impairment charge against certain of the patents acquired from NES. If we
determine that any of our patents are further impaired, we would be required to
write down the value of the patents even further, which would result in
additional non-cash impairment charge.
Our revenue is typically generated from a very limited number of significant
customers.
A material portion of our revenue during any reporting period is typically
generated from a very limited number of significant customers. Consequently, if
any of these significant customers reduce their order level or fail to order
during a reporting period, our revenue could be materially adversely impacted.
Several of our significant customers are ISVs who have bundled our
products with theirs to sell as web-enabled versions of their products. Other
significant customers include distributors who sell our products directly. We do
not control our significant customers. Some of our significant customers
maintain inventories of our products for resale to smaller end-users. If they
reduce their inventory of our products, our revenue and business could be
materially adversely impacted.
If we are unable to develop new products and enhancements to our existing
products, our business, results of operations and financial condition could
be materially adversely impacted.
The market for our products and services are characterized by:
o frequent new product and service introductions and enhancements;
o rapid technological change;
o evolving industry standards;
o fluctuations in customer demand; and
o changes in customer requirements.
Our future success depends on our ability to continually enhance our
current products and develop and introduce new products that our customers
choose to buy. If we are unable to satisfy our customers' demands and remain
competitive with other products that could satisfy their needs by introducing
new products and enhancements, our business, results of operations and financial
condition could be materially adversely impacted. Our future success could be
hindered by:
o delays in our introduction of new products and/or enhancements of
existing products;
o delays in market acceptance of new products and/or enhancements of
existing products; and
o our, or a competitor's, announcement of new products and/or product
enhancements or technologies that could replace or shorten the life cycle
of our existing products.
For example, sales of our GO-Global for Windows software could be affected
by the announcement from Microsoft of the intended release and subsequently, the
actual release of a new Windows-based operating system or an upgrade to a
previously released Windows-based operating system version as these new or
upgraded systems may contain similar features to our products or they could
contain architectural changes that temporarily prevent our products from
functioning properly within a Windows-based operating system environment.
4
Our business could be adversely impacted by changes pending in both the PTO
and the United States Congress.
Currently, proposed rule changes are pending in the PTO that will affect
how currently pending and new patent applications are processed by the PTO.
These rule changes may have an adverse affect on our presently pending patent
applications and any patent applications we may file in the future.
Additionally, legislation is pending in Congress that would reform patent
law. The legislation, if passed, may affect our ability to file lawsuits in
certain jurisdictions and may adversely impact our ability to collect damages if
enacted as currently drafted.
Sales of products within our GO-Global product line constitute a substantial
majority of our revenue.
We anticipate that sales of products within our GO-Global product line,
and related enhancements, will continue to constitute a substantial majority of
our revenue for the foreseeable future. Our ability to continue to generate
revenue from our GO-Global product line will depend on continued market
acceptance of GO-Global. Declines in demand for our GO-Global product line could
occur as a result of:
o lack of success with our strategic partners;
o new competitive product releases and updates to existing competitive
products;
o decreasing or stagnant information technology spending levels;
o price competition;
o technological changes, or;
o general economic conditions in the market in which we operate.
If our customers do not continue to purchase GO-Global products as a
result of these or other factors, our revenue would decrease and our results of
operations and financial condition would be adversely affected.
Our operating results in one or more future periods are likely to fluctuate
significantly and may fail to meet or exceed the expectations of securities
analysts or investors.
Our operating results are likely to fluctuate significantly in the future
on a quarterly and annual basis due to a number of factors, many of which are
outside our control. Factors that could cause our revenues to fluctuate include
the following:
o our ability to maximize the revenue opportunities of our patents;
o variations in the size of orders by our customers;
o increased competition; and
o the proportion of overall revenues derived from different sales channels
such as distributors, original equipment manufacturers (OEMs) and others.
In addition, our royalty and license revenues are impacted by fluctuations
in OEM licensing activity from quarter to quarter, which may involve one-time
orders from non-recurring customers, or customers who order infrequently. Our
expense levels are based, in part, on expected future orders and sales;
therefore, if orders and sales levels are below expectations, our operating
5
results are likely to be materially adversely affected. Additionally, because
significant portions of our expenses are fixed, a reduction in sales levels may
disproportionately affect our net income. Also, we may reduce prices or increase
spending in response to competition or to pursue new market opportunities.
Because of these factors, our operating results in one or more future periods
may fail to meet or exceed the expectations of securities analysts or investors.
In that event, the trading price of our common stock would likely be adversely
affected.
We may not be successful in attracting and retaining key management or other
personnel.
Our success and business strategy is dependent in large part on our
ability to attract and retain key management and other personnel in certain
areas of our business. The loss of the services of one or more key members of
our management group and other key personnel, including our Chief Executive
Officer, may have a material adverse effect on our business. We do not have
long-term employment agreements with any of our key personnel and any officer or
other employee can terminate their relationship with us at any time. The
successful implementation of our business strategy could be dependent upon our
ability to retain highly-skilled key management, technical, sales and finance
personnel. If any of these employees were to leave, we would need to attract and
retain replacements for them. We may also need to add key personnel in the
future, in order to successfully implement our business strategies. The market
for such qualified personnel is competitive and it includes other potential
employers whose financial resources for such qualified personnel are more
substantial than ours. Consequently, we could find it difficult to attract,
assimilate or retain such qualified personnel in sufficient numbers to
successfully implement our business strategies.
Our failure to adequately protect our proprietary rights may adversely affect
us.
Our commercial success is dependent, in large part, upon our ability to
protect our proprietary rights. We rely on a combination of patent, copyright
and trademark laws, and on trade secrets and confidentiality provisions and
other contractual provisions to protect our proprietary rights. These measures
afford only limited protection. We cannot assure you that measures we have taken
will be adequate to protect us from misappropriation or infringement of our
intellectual property. Despite our efforts to protect proprietary rights, it may
be possible for unauthorized third parties to copy aspects of our products or
obtain and use information that we regard as proprietary. In addition, the laws
of some foreign countries do not protect our intellectual property rights as
fully as do the laws of the United States. Furthermore, we cannot assure you
that the existence of any proprietary rights will prevent the development of
competitive products. The infringement upon, or loss of any proprietary rights,
or the development of competitive products despite such proprietary rights,
could have a material adverse effect on our business.
As regards our intention to maximize the revenue opportunities from the
portfolio of patents that we acquired from NES:
o Although we believe the NES patents to be strong, there can be no
assurance that they will not be found invalid either in whole or in part;
o Invalidation of their broadest claims could result in very narrow claims
that do not have the potential to produce meaningful license revenues;
o Many of the companies that we intend to seek licenses from are very large
with significant financial resources. We currently lack the ability to
defend our patents against claims of invalidity if such litigation is
heavily contested over an extended period of months or even years;
o We have engaged attorneys that work on our behalf on a contingent fee
basis and intend to pursue litigation until a resolution is achieved that
is favorable to us. Such attorneys may seek to limit their exposure
6
either by advocating licensing settlements that are not favorable to us
or may abandon their efforts on our behalf; and
o Because Network Engineering Software obtained no foreign patents or filed
any foreign patent applications, infringing companies may seek to avoid
our demand for licenses by moving the infringing activities offshore
where U.S. patents cannot be enforced.
We face risks of claims from third parties for intellectual property
infringement that could adversely affect our business.
At any time, we may receive communications from third parties asserting
that features or content of our products may infringe upon their intellectual
property rights. Any such claims, with or without merit, and regardless of their
outcome, may be time consuming and costly to defend. We may not have sufficient
resources to defend such claims and they could divert management's attention and
resources, cause product shipment delays or require us to enter into new royalty
or licensing agreements. New royalty or licensing agreements may not be
available on beneficial terms, or may not be available at all. If a successful
infringement claim is brought against us and we fail to license the infringed or
similar technology, our business could be materially adversely affected.
Our business significantly benefits from strategic relationships and there
can be no assurance that such relationships will continue in the future.
Our business and strategy relies to a significant extent on our strategic
relationships with other companies. There is no assurance that we will be able
to maintain or develop any of these relationships or to replace them in the
event any of these relationships are terminated. In addition, any failure to
renew or extend any licenses between any third party and us may adversely affect
our business.
We rely on indirect distribution channels for our products and may not be
able to retain existing reseller relationships or to develop new reseller
relationships.
Our products are primarily sold through several distribution channels. An
integral part of our strategy is to strengthen our relationships with resellers
such as OEMs, systems integrators, VARs, distributors and other vendors to
encourage these parties to recommend or distribute our products and to add
resellers both domestically and internationally. We currently invest, and intend
to continue to invest, significant resources to expand our sales and marketing
capabilities. We cannot assure you that we will be able to attract and/or retain
resellers to market our products effectively. Our inability to attract resellers
and the loss of any current reseller relationships could have a material adverse
effect on our business, results of operations and financial condition.
Additionally, we cannot assure you that resellers will devote enough resources
to provide effective sales and marketing support to our products.
The market in which we participate is highly competitive and has more
established competitors.
The market we participate in is intensely competitive, rapidly evolving
and subject to technological changes. We expect competition to increase as other
companies introduce additional competitive products. In order to compete
effectively, we must continually develop and market new and enhanced products
and market those products at competitive prices. As markets for our products
continue to develop, additional companies, including companies in the computer
hardware, software and networking industries with significant market presence,
may enter the markets in which we compete and further intensify competition. A
number of our current and potential competitors have longer operating histories,
greater name recognition and significantly greater financial, sales, technical,
marketing and other resources than we do. We cannot give any assurance that our
competitors will not develop and market competitive products that will offer
superior price or performance features, or that new competitors will not enter
7
our markets and offer such products. We believe that we will need to invest
increased financial resources in research and development to remain competitive
in the future. Such financial resources may not be available to us at the time
or times that we need them, or upon terms acceptable to us. We cannot assure you
that we will be able to establish and maintain a significant market position in
the face of our competition and our failure to do so would adversely affect our
business.
Risks Related to our Common Stock
Our stock price has been historically volatile and you could lose the value
of your investment.
Our common stock is quoted on the OTC Bulletin Board. There can be no
assurance that an active public market will continue for our common stock, or
that the market price for our common stock will not decline below its current
price. The price of our common stock may be influenced by many factors,
including, but not limited to, investor perception of us and our industry and
general economic and market conditions.
Our stock price has historically been volatile; it has fluctuated
significantly to date. The trading price of our stock is likely to continue to
be highly volatile and subject to wide fluctuations in response to announcements
of our business developments or our competitors, quarterly variations in
operating results, and other events or factors. In addition, stock markets have
experienced extreme price volatility in recent years. This volatility has had a
substantial effect on the market prices of companies, at times for reasons
unrelated to their operating performance. Such broad market fluctuations may
adversely affect the price of our common stock.
We do not expect to pay dividends.
We have not paid dividends on our common stock since our inception, and we
do not contemplate paying dividends in the foreseeable future. We intend to use
our earnings, if any, to finance expansion of our business plans.
If we fail to remain current on our reporting requirements, we could be
removed from the OTC Bulletin Board which would limit the ability of
broker-dealers to sell our securities and the ability of stockholders to
sell their securities in the secondary market.
Companies that have common stock quoted on the OTC Bulletin Board must be
reporting issuers under Section 12 of the Securities Exchange Act of 1934, and
must be current in their reports under Section 13, in order to maintain price
quotation privileges on the OTC Bulletin Board. If we fail to remain current on
our reporting requirements, we could be removed from the OTC Bulletin Board. As
a result, the market liquidity for our securities could be severely adversely
affected by limiting the ability of broker-dealers to sell our securities and
the ability of stockholders to sell their securities in the secondary market.
8
PRICE RANGE OF OUR COMMON STOCK
Our common stock is quoted on the OTC Bulletin Board under the symbol
"GOJO".
The following table sets forth, for the periods indicated, the high and
low reported sales price of our common stock.
Fiscal 2009 * Fiscal 2008 * Fiscal 2007 *
-------------- -------------- --------------
Quarter High Low High Low High Low
-------- -------------- -------------- --------------
1st $ 0.09 $ 0.04 $ 0.46 $ 0.27 $ 0.28 $ 0.15
2nd n/a n/a $ 0.35 $ 0.24 $ 0.22 $ 0.13
3rd n/a n/a $ 0.33 $ 0.17 $ 0.29 $ 0.16
4th n/a n/a $ 0.22 $ 0.05 $ 0.45 $ 0.14
----------
* The quotations reflect inter-dealer prices, without retail mark-up,
mark-down or commission and may not represent actual transactions.
On March 31, 2009 there were approximately 152 holders of record of our
common stock. Between April 1, 2009 and May 13, 2009 the high and low reported
sales price of our common stock was $0.10 and $0.05, respectively, and on May
13, 2009 the closing price of our common stock was $0.09.
We have never declared or paid dividends on our common stock, nor do we
anticipate paying any cash dividends for the foreseeable future. We currently
intend to retain future earnings, if any, to finance the operations and
expansion of our business. Any future determination to pay cash dividends will
be at the discretion of our Board of Directors and will be dependent upon the
earnings, financial condition, operating results, capital requirements and other
factors as deemed necessary by the Board of Directors.
9
SELLING STOCKHOLDERS
This prospectus relates to our registration, for the account of the
selling stockholders indicated below, of an aggregate of 31,380,655 shares of
our common stock, including 9,629,200 and 250,000 shares underlying certain of
our warrants and options, respectively. We will pay all expenses and costs to
register the selling stockholders' shares of common stock.
The selling stockholders acquired our common stock and/or warrants in one
or more of the following transactions:
o On February 2, 2005, we issued in a private placement 148,148 shares of
Series A preferred stock and warrants to purchase 74,070 shares of
Series B preferred stock (the 2005 private placement). In connection
with the 2005 private placement, warrants to purchase 14,815 shares of
Series A preferred stock and 7,401 shares of Series B preferred stock
were issued to Griffin Securities, Inc. as a finder's fee. On March
29, 2005, the preferred stock and warrants to purchase preferred stock
were converted into an aggregate of 14,814,800 shares of common stock
and warrants to purchase 9,629,200 shares of common stock.
o On January 31, 2005, we acquired Network Engineering Software for
9,599,993 shares of common stock and other consideration, which we
refer to in this prospectus as the "NES Acquisition." Of such shares,
1,999,999 shares were placed in escrow to settle any post-acquisition
contingencies pursuant to the terms of an escrow agreement. As of
August 1, 2006, 249,999 of such shares remained in escrow and will be
released on the later of February 1, 2007 or the expiration of the
statute of limitations applicable to certain tax matters as stated in
the acquisition agreement.
On February 16, 2005, we issued employee stock options to purchase 250,000
shares of common stock to Gary Green.
We believe that the persons named in this table have sole voting and
investment power with respect to all shares of common stock that they
beneficially own. The last column of this table assumes the sale of all of our
shares offered by this prospectus. The registration of the offered shares does
not mean that any or all of the selling stockholders will offer or sell any of
these shares. Except as set forth in the notes to this table, there is not nor
has there been a material relationship between us and any of the selling
stockholders within the past three years.
Shares
Number of Common Stock Beneficially
Shares Offered by Owned After
Beneficially Selling Offering
Name of Selling Stockholder Owned Stockholder Number Percent
- --------------------------- ------------ ------------ ---------------
Ralph Wesinger (1) 3,230,207 3,230,207 - -
AIGH Investment Partners,LLC (2) 7,598,678 (3) 7,598,678 (3) - -
Paul Packer 3,763,384 (4)(5) 1,106,321 (4)(5) - -
Globis Capital Partners L.P. (6) 2,095,925 (7) 2,095,925 (7) - -
Globis Overseas Fund Ltd. (6) 561,138 (8) 561,138 (8) - -
Richard Grossman 495,191 (9) 495,191 (9) - -
James Kardon 29,400 (10) 29,400 (10) - -
Anthony Altamura 20,000 20,000 - -
Hewlett Fund (11) 391,009 (12) 391,009 (12) - -
Hershel Berkowitz 985,474 (13) 985,474 (13) - -
10
Shares
Number of Common Stock Beneficially
Shares Offered by Owned After
Beneficially Selling Offering
Name of Selling Stockholder Owned Stockholder Number Percent
- --------------------------- ------------ ------------ ---------------
Joshua A. Hirsch 277,800 (14) 277,800 (14) - -
Dr. Jack Dodick 884,500 (15) 884,500 (15) - -
Spira Family Investment
Partnership (16) 416,700 (17) 416,700 (17) - -
Fame Associates (18) 416,700 (17) 416,700 (17) - -
Cam Co. (19) 1,388,800 (20) 1,388,800 (20) - -
Anfel Trading Limited (21) 1,944,400 (22) 1,944,400 (22) - -
Ganot Corporation (23) 833,400 (24) 833,400 (24) - -
Mazel D&K, Inc. (25) 1,111,000 (26) 1,111,000 (26) - -
F. Lyon Polk III 37,000 (10) 37,000 (10) - -
Paul Tramontano 111,100 (27) 111,100 (27) - -
SLAM Partners (28) 90,500 (29) 55,500 (29) 35,000 *
Griffin Securities, Inc. (30) 138,888 (10) 138,888 (10) - -
Friendly Capital LLC (30) 416,662 (10) 416,662 (10) - -
Robert U. Giannini (31) 1,499,986 (10) 1,499,986 (10) - -
Mark H. Zizzamia (31) 83,332 (10) 83,332 (10) - -
Salvatore J. Saraceno (31) 83,332 (10) 83,332 (10) - -
The Tzedakah Fund 555,550 (32) 555,550 (32) - -
CAM-ELM 555,550 (32) 555,550 (32) - -
AME 555,550 (32) 555,550 (32) - -
North American Investments 555,550 (32) 555,550 (32) - -
Joseph Bronner 1,388,877 (33) 1,388,877 (33) - -
Marcia Kreinberg 222,220 (34) 222,220 (34) - -
Gary Green (35) 250,000 (36) 250,000 (36) - -
<FN>
- --------------
* Denotes less than 1%
(1) Prior to the NES Acquisition, Mr. Wesinger was a director, the president
and the majority shareholder of NES. In accordance with the terms of the
NES Acquisition agreement, Mr. Wesinger became a non-executive employee of
our company upon the consummation of the NES Acquisition. During January
2009, Mr. Wesinger ceased to be employed our company.
(2) Orin Hirschman is the managing member of AIGH Investment Partners, LLC and
has sole voting and dispositive power with respect to such shares.
(3) 1,518,400 of such shares are issuable upon exercise of warrants. (4)
Includes 1,216,360 shares held by, and 879,565 shares issuable upon
exercise of warrants held by, Globis Capital Partners, L.P., and 237,054
shares held by, and 324,084 shares issuable upon exercise of warrants held
by, Globis Overseas Fund Ltd.
(5) 296,308 of such shares are issuable upon exercise of warrants.
11
(6) Paul Packer is the managing member of Globis Capital Partners (Globis
Capital) and is the managing member of the general partner of the manager
of Globis Overseas Fund, Ltd. (Globis Overseas). Mr. Packer exercises sole
voting and dispositive power with respect to the shares beneficially owned
by Globis Capital and Globis Overseas.
(7) 879,565 of such shares are issuable upon exercise of warrants.
(8) 324,084 of such shares are issuable upon exercise of warrants.
(9) 92,600 of such shares are issuable upon exercise of warrants.
(10) All of such shares are issuable upon exercise of warrants.
(11) Jacob J. Spinner, the general partner of Hewlett Fund, exercises voting
and investment power over the shares held by this entity. Mr. Spinner
disclaims beneficial ownership of the shares, except to the extent of his
pecuniary interest therein. We have been informed by Hewlett Fund that it
purchased the shares being offered pursuant to this prospectus in the
ordinary course of business and, at the time of the purchase of such
shares, had no agreements or understandings, directly or indirectly, with
any person to distribute the shares.
(12) 138,800 of such shares are issuable upon exercise of warrants.
(13) 333,300 of such shares are issuable upon exercise of warrants.
(14) 92,600 of such shares are issuable upon exercise of warrants.
(15) 294,800 of such shares are issuable upon exercise of warrants.
(16) Steven W. Spira exercises sole voting and dispositive power with respect
to such shares.
(17) 138,900 of such shares are issuable upon exercise of warrants.
(18) Abraham Fructhandler, general partner of Fame Associates, exercises sole
voting and dispositive power with respect to such shares.
(19) Charles Alpert exercises sole voting and dispositive power with respect
to such shares.
(20) 462,900 of such shares are issuable upon exercise of warrants.
(21) Tzvi Levy exercises sole voting and dispositive power with respect to
such shares.
(22) 648,100 of such shares are issuable upon exercise of warrants.
(23) Sisel Klurman exercises sole voting and dispositive power with respect
to such shares.
(24) 277,800 of such shares are issuable upon exercise of warrants.
(25) Reuven Dessler and Jack Koval exercise shared voting and dispositive
power with respect to such shares.
(26) 370,300 of such shares are issuable upon exercise of warrants.
(27) 37,000 of such shares are issuable upon exercise of warrants.
(28) Sam Katzman, general partner of SLAM Partners, exercises sole voting and
dispositive power with respect to such shares.
(29) 18,500 of such shares are issuable upon exercise of warrants.
(30) Adrian Stecyk, the Chief Executive Officer of Griffin Securities,
exercises voting and investment power over the shares held by this entity.
Mr. Stecyk disclaims beneficial ownership of the shares, except to the
extent of his pecuniary interest therein. Griffin Securities acted as
placement agent for our January 2004 private placement and received a
finder's fee for our 2005 private placement.
(31) Messrs. Giannini, Zizzamia and Saraceno were managing directors of Griffin
Private Equity Group, a division of Griffin Securities, at the time that
they originally obtained the warrants (of which the underlying shares are
being offered pursuant to this prospectus). We have been informed by
Griffin Securities and Messrs. Giannini, Zizzamia and Saraceno that they
originally obtained the warrants in the ordinary course of business and, at
12
the time that they originally obtained such warrants, had no agreements or
understandings, directly or indirectly, with any person to distribute the
warrants or the shares underlying the warrants.
(32) 185,180 of such shares are issuable upon exercise of warrants. (33) 462,951
of such shares are issuable upon exercise of warrants. (34) 74,072 of such
shares are issuable upon exercise of warrants. (35) Mr. Green is one of our
employees.
(36) Includes 250,000 shares of common stock issuable upon exercise of options.
All such options became fully vested in January 2008.
</FN>
13
PLAN OF DISTRIBUTION
We are registering the shares on behalf of the selling stockholders, as
well as on behalf of their donees, pledgees, transferees or other
successors-in-interest, if any, who may sell shares received as gifts, pledgees,
partnership distributions or other non-sale related transfers. All costs,
expenses and fees in connection with the registration of the shares offered
hereby will be borne by us. Brokerage commissions and similar selling expenses,
if any, attributable to the sale of the shares will be borne by the selling
stockholders.
Sales of the shares may be effected by the selling stockholders from time
to time in one or more types of transactions (which may include block
transactions) on any securities exchange, in the over-the-counter market, in
negotiated transactions, through put or call option transactions relating to the
shares, through short sales of shares, short sales versus the box, or a
combination of such methods of sale, at fixed prices, market prices prevailing
at the time of sale, prices related to market prices, varying prices determined
at the time of sale or at negotiated prices. Such transactions may or may not
involve brokers or dealers. The selling stockholders have advised us that they
have not entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities, nor is
there an underwriter or coordinating broker acting in connection with the
proposed sale of the shares by the selling stockholders.
The selling stockholders may effect such transactions by selling the
shares directly to purchasers or to or through broker-dealers, which may act as
agents or principals. Such broker-dealers may receive compensation in the form
of discounts, concessions, or commissions from the selling stockholders and/or
the purchasers of the shares for whom such broker-dealers may act as agents or
to whom they sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). In effecting sales,
broker-dealers engaged by the selling stockholders may arrange for other
broker-dealers to participate.
The selling stockholders and any broker-dealers that act in connection
with the sale of the shares might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, and any commissions
received by such broker-dealers and any profit on the resale of the shares sold
by them while acting as principals might be deemed to be underwriting discounts
or commissions under the Securities Act. The selling stockholders may agree to
indemnify any agent, dealer or broker-dealer that participates in transactions
involving sales of the shares against certain liabilities, including liabilities
arising under the Securities Act.
Because selling stockholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, the selling stockholders will be
subject to the prospectus delivery requirements of the Securities Act. We have
informed the selling stockholders that the anti-manipulative provisions of
Regulation M promulgated under the Securities Exchange Act of 1934 may apply to
their sales in the market.
The selling stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of such Rule.
Sales of any shares of common stock by the selling stockholders may
depress the price of the common stock in any market that may develop for the
common stock.
If we are notified by a selling stockholder that any material arrangement
has been entered into with a broker-dealer for the sale of the shares through a
14
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, we will, if required, file a supplement to
this prospectus or a post-effective amendment to the registration statement of
which this prospectus is a part under the Securities Act, disclosing:
o the name of each such selling stockholder and of the participating
broker-dealer(s);
o the number of shares involved;
o the price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
o that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this prospectus;
and
o other facts material to the transaction.
We will not receive any of the proceeds received by the selling
stockholders in connection with any of their sales of our common stock. However,
we will receive proceeds of up to $3,659,100 if all of the warrants that relate
to the common stock being offered by the selling stockholders are exercised for
cash. We intend to use such proceeds, if any, for working capital and general
corporate purposes.
15
DESCRIPTION OF OUR SECURITIES
Common Stock
We are currently authorized to issue up to 195,000,000 shares of our
common stock, $0.0001 par value. As of March 31, 2009, 47,342,292 shares of our
common stock were issued and outstanding, and held of record by approximately
152 persons. We estimate that there are in excess of 3,000 beneficial owners of
our common stock.
Holders of shares of our common stock are entitled to such dividends as
may be declared from time to time by the board in its discretion, on a ratable
basis, out of funds legally available therefrom, and to a pro rata share of all
assets available for distribution upon liquidation, dissolution or other winding
up of our affairs. All of the outstanding shares of our common stock are fully
paid and non-assessable.
Warrants
The material terms of the warrants issued to the selling stockholders are
as follows:
o warrants to purchase an aggregate of 1,481,500 shares of our common
stock are exercisable at $0.27 per share and expire on February 2, 2010;
o warrants to purchase an aggregate of 8,147,700 shares of our common
stock are exercisable at $0.40 per share and expire on February 2, 2010;
and
The exercise prices of the warrants are subject to adjustment upon the
occurrence of certain events, including the issuance of our common stock at a
price below the exercise price of the warrants or a split-up or combination of
our common stock and a reorganization or merger to which we are a party.
Limitation of Liability
As permitted by the General Corporation Law of the State of Delaware, our
restated certificate of incorporation provides that our directors shall not be
personally liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty to us or our
stockholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o under section 174 of the Delaware law, relating to unlawful payment of
dividends or unlawful stock purchases or redemption of stock; and
o for any transaction from which the director derives an improper personal
benefit.
As a result of this provision, we and our stockholders may be unable to
obtain monetary damages from a director for breach of his or her duty of care.
Our restated certificate of incorporation provides for the indemnification
of our directors and officers, and, to the extent authorized by our board in its
sole and absolute discretion, employees and agents, to the full extent
authorized by, and subject to the conditions set forth in the Delaware law.
Delaware Anti-Takeover Law
We are subject to the provisions of section 203 of the Delaware law.
Section 203 prohibits publicly held Delaware corporations from engaging in a
16
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
A "business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested stockholder. Subject to
certain exceptions, an "interested stockholder" is a person who, together with
affiliates and associates, owns, or within three years did own, 15% or more of
the corporation's voting stock. These provisions could have the effect of
delaying, deferring or preventing a change of control of us or reducing the
price that certain investors might be willing to pay in the future for shares of
our common stock.
Transfer Agent
The transfer agent for our common stock is American Stock Transfer & Trust
Company, 59 Maiden Lane, New York, New York 10038.
17
LEGAL MATTERS
The validity of the shares of our common stock covered by this prospectus
has been passed upon by Sonnenschein Nath & Rosenthal LLP, New York, New York.
EXPERTS
The consolidated financial statements of GraphOn Corporation at December
31, 2008 and 2007 and for each of the two years in the period ended December 31,
2008 appearing in our annual report on Form 10-K for the year ended December 31,
2008 have been audited by Macias Gini & O'Connell LLP, Independent Registered
Public Accounting Firm, as set forth in their report thereon included therein,
and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934 and, therefore, we file annual, quarterly and current
reports, proxy statements and other information with the Securities and Exchange
Commission. Copies of such periodic reports, proxy statements and other
information are available for inspection without charge at the public reference
room maintained by the SEC, located at 100 F Street, N.E., Washington, D.C.
20549, and copies of all or any part of these filings may be obtained from such
offices upon the payment of the fees prescribed by the SEC. Please call the SEC
at 1-800-SEC-0330 for further information about the public reference room. The
SEC also maintains an Internet web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the SEC. The address of the site is http://www.sec.gov.
The SEC allows us to incorporate by reference the information we have
filed with it, which means that we can disclose important information to you by
referring you to those documents. Our SEC File Number is 0-21832. The
information incorporated by reference is considered to be part of this
prospectus. The documents we are incorporating by reference are as follows:
o our Annual Report on Form 10-K for the year ended December 31, 2008;
o our Quarterly Report on Form 10-Q for the quarterly period ended March
31, 2009; and
o the description of our common stock contained in our registration
statement on Form 8-A, including any amendments or reports filed for the
purpose of updating that description.
We will provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus is delivered, upon written or oral
request, a copy of any or all of the foregoing documents which we incorporate by
reference in this prospectus (not including exhibits to such documents unless
such exhibits are specifically incorporated by reference to such documents).
Requests should be directed to: GraphOn Corporation, 5400 Soquel Avenue, Suite
A2, Santa Cruz, California, 95062; our phone number is 1-800-GRAPHON
(1-800-472-7466).
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth various expenses that will be incurred in
connection with this offering as it relates to this Post Effective Amendment:
Legal Fees and Expenses................... $ 3,500
Accounting Fees and Expenses.............. 10,000
Printing Expenses......................... 500
Miscellaneous Expenses.................... 1,000
----------
Total................................ $ 15,000
==========
- ---------------
* Estimated
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee of or agent to the Registrant. The
statute provides that it is not exclusive of other rights to which those seeking
indemnification may be entitled under any by-law, agreement, or vote of
stockholders or disinterested directors or otherwise.
The Registrant's Bylaws provide that any person made a party to an action
by or in the right of the Registrant to procure a judgment in its favor by
reason of the fact that he, his testator or intestate, is or was a director or
officer of the Registrant shall be indemnified by the Registrant against the
reasonable expenses, including attorneys fees, actually and necessarily incurred
by him in connection with the defense of such action or in connection with an
appeal therein, to the fullest extent permitted by the General Corporation Law
or any successor thereto.
The Registrant's Bylaws provide that any person made or threatened to be
made a party to an action or proceeding other than one by or in the right of the
Registrant to procure a judgment in its favor, whether civil or criminal,
including an action by or in the right of any other corporation of any type or
kind, domestic or foreign, which any director or officer of the Registrant
served in any capacity at the request of the Registrant, by reason of the fact
that he, his testator or intestate, was a director or officer of the Registrant,
or served such other corporation in any capacity, shall be indemnified by the
Registrant against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys fees actually and necessarily incurred as a result
of such action or proceeding, or any appeal therein, if such director or officer
acted in good faith for a purpose which he reasonably believed to be in the best
interests of the Registrant and, in criminal actions or proceedings, in which he
had no reasonable cause to believe that his conduct was unlawful.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
II-1
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's certificate of incorporation provides for such
limitation of liability.
Item 15. Recent Sales of Unregistered Securities
During the three years ended March 31, 2009, the Registrant issued options
to purchase 3,168,500 shares of its common stock, at exercise prices ranging
from $0.05 to $0.38 per share, and awarded 1,075,000 shares of restricted common
stock with fair market values ranging from $0.16 to $0.38 per share to various
employees and directors pursuant to its various employee benefit plans. The
granting of such stock options and awarding of such restricted stock to the
employees and directors was not registered under the Securities Act of 1933
because the stock options and restricted stock were offered and sold in
transactions not involving a public offering, exempt from registration under the
Securities Act of 1933 pursuant to Section 4(2) and in compliance with Rule 506
thereunder.
Item 16. Exhibits
The following is a list of exhibits filed herewith as part of the
registration statement:
Exhibit
Number Description of Exhibit
- ----------------------------------------------------------------------
3.1 Amended and Restated Certificate of Incorporation of
Registrant, as amended (1)
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 February 2, 2005 (4)
4.3 Investors Rights Agreement, dated February 2, 2005, by and
among Registrant and the investors named therein (4)
4.4 Form of Warrant issued by Registrant on March 29, 2005 (5)
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP *
10.1 1996 Stock Option Plan of Registrant (3)
10.2 1998 Stock Option/Stock Issuance Plan of Registrant (6)
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 (7)
10.6 Amendment to Lease Agreement between Registrant and Central
United Life Insurance, dated as of September 15, 2006 (1)
10.7 Holder Agreement, dated January 31, 2005, by and between
Registrant and the holders named therein (4)
10.8 2005 Equity Incentive Plan (8)
10.9 Stock Option Agreement, dated January 29, 2005 by and
between Registrant and Gary Green (9)
10.10 Employment Agreement, dated February 11, 2000, by and
between Registrant and William Swain (10)
10.11 Director Severance Plan (11)
II-2
10.12 Key Employee Severance Plan (11)
10.13 2008 Equity Incentive Plan (12)
21.1 Subsidiaries of Registrant (13)
23.1 Consent of Macias Gini & O'Connell LLP
23.2 Consent of Sonnenschein Nath & Rosenthal LLP
(contained in their opinion included under Exhibit 5.1) *
- ----------
* Previously filed as an exhibit to this registration statement
(1) Filed on April 2, 2007 as an exhibit to Registrant's Annual Report
on Form 10-KSB for the year ended December 31, 2006, and
incorporated herein by reference.
(2) Filed on June 4, 1999 as an exhibit to Amendment No. 1 to the
Registrant's Registration Statement on Form S-4 (File No.333-76333),
and incorporated herein by reference
(3) Filed as an exhibit to the Registrant's Registration Statement on
Form S-1 (File No. 333-11165), and incorporated herein by reference
(4) Filed on February 4, 2005 as an exhibit to the Registrant's Current
Report on Form 8-K, dated January 31, 2005, and incorporated herein
by reference
(5) Filed on April 4, 2005 as an exhibit to the Registrant's Current
Report on Form 8-K, dated March 29, 2005, and incorporated herein by
reference
(6) Filed on June 23, 2000 as an exhibit to the Registrant's
Registration Statement on Form S-8 (File No. 333-40174) and
incorporated herein by reference
(7) Filed on March 30, 2004 as an exhibit to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 2003, and
incorporated herein by reference
(8) Filed on November 25, 2005 as an exhibit to the Registrant's
definitive Proxy Statement for the Registrant's 2005 Annual Meeting,
and incorporated herein by reference
(9) Filed on April 17, 2006 as an exhibit to the Registrant's Annual
Report on Form 10-KSB for the year ended December 31, 2005, and
incorporated herein by reference
(10) Filed on February 6, 2007 as an exhibit to Post-Effective Amendment
No. 4 to the Registrant's Registration Statement to Form S-1 on Form
SB-2 (File No. 333-124791), and incorporated herein by reference
(11) Filed on August 14, 2008 as an exhibit to the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 2008,
and incorporated herein by reference
(12) Filed on December 17, 2008 as an exhibit to the Registrant's
Registration Statement on Form S-8 (File No. 333-156229) and
incorporated herein by reference
(13) Filed on March 31, 2009 as an exhibit to Registrant's Annual Report
on Form 10-K for the year ended December 31, 2008, and incorporated
herein by reference.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) That for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
II-3
(2) That for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth
in "Calculation of Registration Fee" table in the effective
registration statement;
(c) 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.
(4) 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 that time shall be deemed to be the initial bona fide offering
thereof.
(5) 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
Registrant as described in Item 24 of this Part II to the registration
statement, or otherwise, Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by Registrant of expenses incurred or paid by a director, officer or
controlling person of 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, Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the 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 15th day of May, 2009.
GRAPHON CORPORATION
By: /s/ William Swain
------------------------------------
William Swain
Secretary and Chief Financial Officer
---------------
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 Chief
* Executive Officer May 15, 2009
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Robert Dilworth Officer)
Secretary and Chief
/s/ William Swain Financial Officer May 15, 2009
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William Swain Accounting Officer)
* Director May 15, 2009
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August P. Klein
* Director May 15, 2009
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Michael Volker
* Director May 15, 2009
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Gordon Watson
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* 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 Post-Effective Amendment to the Registration Statement on
behalf of each of the persons referenced above.
Date: May 15, 2009 /s/ William Swain
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William Swain
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ----------------------------------------------------------------------
3.1 Amended and Restated Certificate of Incorporation of
Registrant, as amended (1)
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 February 2, 2005 (4)
4.3 Investors Rights Agreement, dated February 2, 2005, by and
among Registrant and the investors named therein (4)
4.4 Form of Warrant issued by Registrant on March 29, 2005 (5)
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP *
10.1 1996 Stock Option Plan of Registrant (3)
10.2 1998 Stock Option/Stock Issuance Plan of Registrant (6)
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 (7)
10.6 Amendment to Lease Agreement between Registrant and Central
United Life Insurance, dated as of September 15, 2006 (1)
10.7 Holder Agreement, dated January 31, 2005, by and between
Registrant and the holders named therein (4)
10.8 2005 Equity Incentive Plan (8)
10.9 Stock Option Agreement, dated January 29, 2005 by and
between Registrant and Gary Green (9)
10.10 Employment Agreement, dated February 11, 2000, by and
between Registrant and William Swain (10)
10.11 Director Severance Plan (11)
10.12 Key Employee Severance Plan (11)
10.13 2008 Equity Incentive Plan (12)
21.1 Subsidiaries of Registrant (13)
23.1 Consent of Macias Gini & O'Connell LLP
23.2 Consent of Sonnenschein Nath & Rosenthal LLP
(contained in their opinion included under Exhibit 5.1) *
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* Previously filed as an exhibit to this registration statement
(1) Filed on April 2, 2007 as an exhibit to Registrant's Annual Report
on Form 10-KSB for the year ended December 31, 2006, and
incorporated herein by reference.
(2) Filed on June 4, 1999 as an exhibit to Amendment No. 1 to the
Registrant's Registration Statement on Form S-4 (File No.333-76333),
and incorporated herein by reference
(3) Filed as an exhibit to the Registrant's Registration Statement on
Form S-1 (File No. 333-11165), and incorporated herein by reference
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(4) Filed on February 4, 2005 as an exhibit to the Registrant's Current
Report on Form 8-K, dated January 31, 2005, and incorporated herein
by reference
(5) Filed on April 4, 2005 as an exhibit to the Registrant's Current
Report on Form 8-K, dated March 29, 2005, and incorporated herein by
reference
(6) Filed on June 23, 2000 as an exhibit to the Registrant's
Registration Statement on Form S-8 (File No. 333-40174) and
incorporated herein by reference
(7) Filed on March 30, 2004 as an exhibit to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 2003, and
incorporated herein by reference
(8) Filed on November 25, 2005 as an exhibit to the Registrant's
definitive Proxy Statement for the Registrant's 2005 Annual Meeting,
and incorporated herein by reference
(9) Filed on April 17, 2006 as an exhibit to the Registrant's Annual
Report on Form 10-KSB for the year ended December 31, 2005, and
incorporated herein by reference
(10) Filed on February 6, 2007 as an exhibit to Post-Effective Amendment
No. 4 to the Registrant's Registration Statement to Form S-1 on Form
SB-2 (File No. 333-124791), and incorporated herein by reference
(11) Filed on August 14, 2008 as an exhibit to the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 2008,
and incorporated herein by reference
(12) Filed on December 17, 2008 as an exhibit to the Registrant's
Registration Statement on Form S-8 (File No. 333-156229) and
incorporated herein by reference
(13) Filed on March 31, 2009 as an exhibit to Registrant's Annual Report
on Form 10-K for the year ended December 31, 2008, and incorporated
herein by reference.
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