Attached files
file | filename |
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EX-5.1 - ZCO LIQUIDATING Corp | v205147_ex5-1.htm |
EX-23.1 - ZCO LIQUIDATING Corp | v205147_ex23-1.htm |
EX-23.2 - ZCO LIQUIDATING Corp | v205147_ex23-2.htm |
United
States
Securities
And Exchange Commission
Washington,
D.C. 20549
Form
S-1
Registration
Statement Under The Securities Act Of 1933
OCZ
Technology Group, Inc.
(Exact
name of Registrant as specified in its charter)
Delaware
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3572
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04-3651093
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(State or other jurisdiction
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(Primary
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(I.R.S.
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of
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Standard
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Employer
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||
incorporation
or
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Industrial
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Identification
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organization)
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Classification
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No.)
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Code
number)
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6373
San Ignacio Avenue
San
Jose, California 95119
(408)
733-8400
(Address,
including zip code, and telephone number, including area code, of Registrant’s
principal executive offices)
Ryan
M. Petersen
President
and Chief Executive Officer
OCZ
Technology Group, Inc.
6373
San Ignacio Avenue
San
Jose, California 95119
(408)
733-8400
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
Arthur
F. Knapp, Jr.
Interim
Chief Financial Officer
OCZ
Technology Group, Inc.
6373
San Ignacio Avenue
San
Jose, California 95119
(408)
733-8400
and
Phillip
J. Niehoff, Esq.
Mayer
Brown LLP
71
S. Wacker Drive
Chicago,
Illinois, 60606
(312)
701-7843
Approximate
date of commencement of proposed sale to the public:
From time
to time after the Registration Statement becomes effective.
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, 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 number 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. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company.
Large
accelerated filer ¨
|
Accelerated
filer ¨
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Non-accelerated
filer ¨
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Smaller
reporting company ¨
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(Do not
check if smaller reporting company)
Calculation
Of Registration Fee
Title of Each Class of Securities to be Registered
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Amount to be
Registered
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Proposed Maximum
Offering Price Per Unit
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Proposed Maximum
Aggregate Offering Price
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Amount of Registration
Fee
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|||||
Common
stock to be offered for resale by the Selling Stockholders, $0.0025 par
value
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7,139,960(1)
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$3.95(2)
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$28,202,842.00
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$2,010.86
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|||||
Common
stock acquirable upon the exercise of warrants by the Selling
Stockholders
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1,784,996(3)
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$5.25
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$9,371,229
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$668.17
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|||||
Common
stock acquirable by placement agent upon the exercise of
warrants
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214,198(4)
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$3.08125
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$659,997.59
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$47.06
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|||||
Total
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9,139,154
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$38,234,068.59
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$2,726.09
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(1)
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Consisting
of shares of common stock issued to the Selling Stockholders
hereunder.
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(2)
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Estimated
solely for the purposes of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act of 1933, as amended, (the “Securities
Act”) based upon the average of the high and low sales price of the
common stock on December 8, 2010, as reported on The NASDAQ Capital
Market, which was $3.95 per share.
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(3)
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Consisting
of up to 1,784,996 shares of common stock issuable upon the exercise of
warrants, which will become exercisable on May 3, 2011 on a cashless basis
at an exercise price of $5.25 per share and which will expire on November
2, 2015. Estimated pursuant to Rule 457(g) under the Securities
Act solely for the purposes of calculating the registration
fee.
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(4)
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Consisting
of up to 214,198 shares of common stock issuable upon the exercise of
placement agent warrants issuable pursuant to a placement agent commission
granted to the placement agent (the “Placement
Agent Warrant”). The Placement Agent Warrant is
exercisable immediately on a cashless basis at an exercise price of
$3.08125 per share and expires on November 2, 2015. Estimated
pursuant to Rule 457(g) under the Securities Act solely for the purposes
of calculating the registration
fee.
|
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 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
2
Prospectus
The
information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission (“SEC”) is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted.
Subject
to Completion, dated December 10, 2010
OCZ
Technology Group, Inc.
7,139,960
Shares of Common Stock
1,999,194
Shares of Common Stock issuable upon the exercise of outstanding
Warrants
This
prospectus relates to the resale by selling stockholders identified in the
section entitled “Selling
Stockholders” on page 13
of up to an aggregate of 9,139,154 shares of common stock, par value
$0.0025 per share, of OCZ Technology Group, Inc. (“OCZ”),
which consists of:
|
§
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7,139,960 shares of common stock;
and
|
|
§
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1,999,194 shares of common
stock issuable upon the exercise of outstanding
warrants.
|
The
Selling Stockholders (which term as used herein includes their pledgees,
assignees, or other successors-in-interest) may offer and sell any of the shares
of common stock from time to time at fixed prices, at market prices or at
negotiated prices, and may engage a broker, dealer or underwriter to sell the
shares. For additional information on the possible methods of sale that
may be used by the Selling Stockholders, you should refer to the section
entitled “Plan of
Distribution” on page
20 of this prospectus. We will not receive any proceeds from the
sale of the shares of common stock by the Selling Stockholders.
No
underwriter or other person has been engaged to facilitate the sale of shares of
our common stock in this offering. The Selling Stockholders may be
deemed underwriters of the shares of our common stock that they are
offering. We will bear all costs, expenses and fees in connection
with the registration of these shares. The Selling Stockholders will
bear all commissions and discounts, if any, attributable to their respective
sales of shares.
Our
common stock is currently listed on The NASDAQ Capital Market under the symbol
“OCZ”. On
December 8, 2010, the last reported sales price of our shares on The NASDAQ
Capital Market was $3.95 per share. You should rely only on the
information contained in this prospectus.
You should consider carefully the
risks that we have described in the section entitled “Risk
Factors” before deciding whether to invest in
our common stock.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful and complete. Any representation to the contrary is a criminal
offense.
This
prospectus is
dated ,
2010.
You should rely only on the
information contained in this prospectus. We have not authorized anyone to
provide you with information different from that contained in this
prospectus. The Selling Stockholders are offering to sell, and seeking
offers to buy, shares of our common stock only in jurisdictions where offers and
sales are permitted. The information 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 our common
stock.
3
Table
of Contents
Prospectus
Summary
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5
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Cautionary
Statements Regarding Forward Looking Statements
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7
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Use
of Proceeds
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8
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Market
Price Of and Dividends on Common Stock and Related Stock
Matters
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8
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Security
Ownership of Certain Beneficial Owners and Management
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10
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Selling
Stockholders
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13
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Plan
of Distribution
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20
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Legal
Matters
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21
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Experts
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21
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Material
Changes
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22
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Where
You Can Find More Information
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22
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Incorporation
of Certain Information by Reference
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22
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Signatures
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28
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Exhibit
Index
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29
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4
Prospectus
Summary
This
summary highlights selected information more fully described elsewhere in this
prospectus. You should read the following summary together with the entire
prospectus, including the more detailed information regarding us and the common
stock being sold in this offering and our financial statements and the related
notes appearing elsewhere in this prospectus. You should carefully
consider, among other things, the matters discussed in the section entitled
“Risk
Factors” before deciding to invest in our common stock. Unless
otherwise stated or the context requires otherwise, references in this
prospectus to “we,” “our” or “us” refer to OCZ Technology Group, Inc. and our
subsidiaries.
Overview
We are a
leading provider of high performance solid state drives (“SSDs”) and
memory modules for computing devices and systems.
Historically,
we primarily sold high performance memory modules to individual computing
enthusiasts through catalog and online retail channels. However, SSDs
have emerged as a strong market alternative to conventional disk drive
technology and SSDs are rooted in much of the same basic technological concepts
as our legacy memory module business. Today, as part of a
diversification strategy which began in fiscal year 2009, our product mix is
significantly more weighted toward the sale of SSDs and the SSD product line has
become central to our business. As a result, our target customers are
increasingly enterprises and original equipment manufacturers (or “OEMs”).
In
addition to our SSD and memory module product lines, we design, develop,
manufacture and distribute other high performance components for computing
devices and systems, including thermal management solutions and AC/DC switching
power supply units (“PSUs”). We
offer our customers flexibility and customization by providing a broad array of
solutions which are interoperable and can be configured alone or in combination
to make computers run faster, more reliably, efficiently and cost
effectively. Through our diversified and global distribution channel,
we offer approximately 20 product lines to 375 customers, including leading
retailers, on-line retailers (or “etailers”),
OEMs and computer distributors.
Corporate
Information
We were
founded in 2002 and incorporated in Delaware in December 2004. We
have two subsidiaries, OCZ Canada, Inc., a Canadian corporation, and OCZ
Technology Ireland Limited, an Irish corporation.
Our principal executive offices are
located at 6373 San Ignacio Avenue, San Jose California, 95119, and our
telephone number is (408) 733-8400. Our website address is www.ocztechnology.com. The information on, or
that can be accessed through, our website is not part of this
prospectus.
The
Offering
Shares
outstanding prior to offering:
|
As
of November 30, 2010, we had 34,165,718 shares of our common stock issued
and outstanding.
|
|
Common
Stock offered for resale to the public by the Selling
Stockholders:
|
Up
to 9,139,154 shares of our common stock, which consists
of:
§ Up to 7,139,960
shares of common stock; and
§ Up
to 1,999,194 shares of common stock issuable upon the exercise of
outstanding warrants.
|
5
Use
of Proceeds:
|
Proceeds
from the sale of common stock covered by this prospectus will be received
by the Selling Stockholders. We will not receive any proceeds
from the sale of the shares of common stock covered by this
prospectus. We may receive proceeds from the exercise of the
warrants whose underlying shares of common stock are covered by this
prospectus.
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|
The
NASDAQ Capital Market symbol for our common stock:
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“OCZ”
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|
Risk
Factors:
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See
“Risk
Factors” and the other information included in this prospectus for
a discussion of risk factors you should carefully consider before deciding
to invest in our common
stock.
|
6
Cautionary
Statement Regarding Forward-Looking Statements
Some of
the statements contained in this prospectus are forward-looking statements,
including, in particular, statements about our plans, strategies and prospects,
objectives, expectations, intentions, adequacy of resources, and industry
estimates. These statements identify prospective information and include
words such as “expects,” “plans,” “anticipates,” “believes,” “estimates,”
“predicts,” “projects” and similar expressions.
Forward-looking
statements are based on information available to us as of the date of this
prospectus. Current expectations, forecasts and assumptions involve a
number of risks, uncertainties and other factors that could cause actual results
to differ materially from those anticipated by these forward-looking statements.
We caution you therefore that you should not rely on any of these
forward-looking statements as statement of historical fact or as guarantees of
future performance. These forward-looking statements should not be relied
upon as representing our views as of any subsequent date, and we undertake no
obligation to update forward-looking statements to reflect events or
circumstances after the date they were made.
Factors
that could cause actual results to differ materially from those expressed or
implied by forward-looking statements include, but are not limited
to:
|
§
|
our ability to implement our
business strategy, including the expansion of our solid state drive
(“SSD”) product line through
distributors and direct
sales;
|
|
§
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our ability to obtain additional
financing and continue to fund order fulfillment to match the demand for
our products;
|
|
§
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our limited operating history,
which is principally in products that are not our SSD product line, which
has emerged as our core
focus;
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|
§
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unknown liabilities associated
with past and future
acquisitions;
|
|
§
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our ability to manage
growth;
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§
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significant competition amid with
technology that is rapidly
evolving;
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|
§
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our ability to attract and retain
talented employees; and
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§
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other
risks described under the headings “Risk
Factors” and “Management’s
Discussion and Analysis of Financial
Condition and Results of
Operations.”
|
Market
data and industry statistics used throughout this prospectus are based on
independent industry publications and other publicly available
information. We believe these sources of information are reliable and
that the information fairly and reasonably characterizes our
industry. Although we take responsibility for compiling and
extracting the data, we have not independently verified this
information.
7
Use
Of Proceeds
We are
registering these shares pursuant to the registration rights granted to the
Selling Stockholders in connection with a registration rights agreement with the
Selling Stockholders. The Selling Stockholders will receive all of
the net proceeds from the sale of the shares of our common stock offered for
resale by them under this prospectus. We will not receive any proceeds
from the resale of shares of our common stock by the Selling Stockholders
covered by this prospectus; however, we will receive proceeds from cash payments
made in connection with the exercise of warrants held by Selling Stockholders
that are covered by this prospectus. We expect to use the proceeds
received from the exercise of the warrants, if any, for working capital and
general corporate purposes.
Market
Price Of And Dividends On Common Stock And Related Stockholder
Matters
Information
required by this section is incorporated herein by reference to Part II, Item 5
entitled “Market for
Registrant’s Common Equity. Related Stockholder matters and Issuer Purchases of
Equity Securities” of our Annual Report filed on Form 10-K with the
Securities and Exchange Commission (“SEC”) on
May 20, 2010 (“Annual
Report”).
The
following information is in addition to the information already set forth under
the corresponding captions identified below in Part II, Item 5 entitled “Market for
Registrant’s Common Equity. Related Stockholder matters and Issuer
Purchases of Equity Securities” of our Annual Report.
The
quotations below reflect the high and low prices for our common stock since May
31, 2007 as reported on AIM, OTCBB and The NASDAQ Capital Market, as applicable.
The quotations below reflect inter-dealer prices, without retail mark-up,
mark-down or commission and may not necessarily represent actual
transactions.
The
NASDAQ Capital Market
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||||||||
High
|
Low
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|||||||
2010:
|
||||||||
Period
of September 1 – December 8, 2010
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$ | 4.42 | $ | 1.79 | ||||
2nd
Quarter (August 31, 2010)
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$ | 3.89 | $ | 1.80 | ||||
Period
of April 23 – May 31, 2010
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$ | 5.05 | $ | 3.30 |
OTCBB
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||||||||
High
|
Low
|
|||||||
2010:
|
||||||||
Period
of March 1 – April 22, 2010
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$ | 5.25 | $ | 4.00 | ||||
Period
of January 14 – February 28, 2010
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$ | 6.25 | $ | 5.25 |
AIM
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||||||||
High
|
Low
|
|||||||
2009:
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||||||||
Period
of March 1 – April 1, 2009
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$ | 0.36 | $ | 0.12 | ||||
4th
Quarter (February 28, 2009)
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$ | 0.51 | $ | 0.11 |
2008:
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||||||||
3rd
Quarter (November 30, 2008)
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$ | 0.65 | $ | 0.38 | ||||
2nd Quarter
(August 31, 2008)
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$ | 1.25 | $ | 0.75 | ||||
1st Quarter
(May 31, 2008)
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$ | 1.88 | $ | 0.90 | ||||
2
Month Period Ended February 29, 2008
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$ | 2.28 | $ | 1.48 |
2007:
|
||||||||
4th
Quarter (December 31, 2007)
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$ | 7.28 | $ | 2.10 | ||||
3rd
Quarter (September 30, 2007)
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$ | 9.72 | $ | 6.00 | ||||
2nd Quarter
(June 30, 2007)
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$ | 8.78 | $ | 5.65 |
8
The
closing sales price for our common stock on December 8, 2010 was $3.95, as
reported by The NASDAQ Capital Market.
Equity
Compensation Plan Information
In
December 2004, our Board adopted and our stockholders approved a stock incentive
plan with 1,800,000 shares of common stock authorized for issuance (the “Stock Incentive
Plan”). The number of shares subject to the Stock Incentive
Plan was subsequently increased to 5,232,873. At our Annual Meeting
of Stockholders which was held on November 15, 2010, our stockholders approved a
second increase of up to 7,732,873 total shares of common stock authorized for
issuance under the Stock Incentive Plan.
Recent
Developments
In
November 2010, we issued an aggregate of 7,139,960 shares of our common stock at
$3.08125 per share in connection with a private placement. These
shares were issued in the United States in reliance of Rule 506 of Regulation D
under the Securities Act and all recipients of our common stock were
“accredited” as defined under the rules of the SEC. As part of the
private placement offering, we also issued warrants to purchase up to (i)
1,784,996 shares of our common stock at $5.25 per share (the “$5.25
Warrants”) and (ii) 214,198 shares of our common stock at $3.08125 per
share (the “$3.08125
Warrants”). The warrants have been issued in reliance on the
exemptions provided by Section 4(2) of the Securities Act. In
addition, we have a commitment to issue a warrant for up to 53,549 shares of our
common stock at $5.25 per share. The $5.25 Warrants are exercisable
on May 3, 2011, will expire on November 2, 2015 and may be exercised by the
holders on a cashless basis. The $3.08125 Warrants are immediately
exercisable, will expire on November 2, 2015 and may be exercised by the holder
on a cashless basis. In addition, the $3.08125 Warrants contain
certain piggyback registration rights.
9
Security
Ownership of Certain Beneficial Owners and Management
The
following table contains information as of November 30, 2010 as to the number of
shares of our common stock beneficially owned by (i) each person we know to own
beneficially more than 5% of our common stock, (ii) each person who is a
director or director nominee, (iii) the executive officers for whom information
is included in the Summary Compensation Table and (iv) all persons as a group
who are directors and executive officers and as to the percentage of outstanding
shares held by these persons on that date. The numbers set forth
below give effect to the 1 for 2.5 reverse stock split that occurred in
September 2009. As of November 30, 2010, 34,165,718 shares of our
common stock were issued and outstanding. Unless otherwise indicated,
all persons named as beneficial owners of our common stock have sole voting
power and sole investment power with respect to the shares indicated as
beneficially owned.
Unless
otherwise indicated, all persons named below can be reached at OCZ Technology
Group, Inc., 6373 San Ignacio Avenue, San Jose, California 95119.
Name and Address of Beneficial
Owner(1)
|
Number of Shares
Beneficially
Owned(2)
|
Percent(3)
|
||
Columbus
Capital Management LLC(4)
|
||||
One
Montgomery Street, Suite 3300,
|
||||
San
Francisco, CA 94104
|
1,850,000
|
5.41%
|
||
Empire
Capital Management LLC and Empire GP, LLC(5)
|
||||
1
Gorham Island, Westport, CT 06880
|
3,122,718
|
8.92%
|
||
Arthur
Armagast(6)
|
4,068,800
|
11.91%
|
||
Ryan
M. Petersen(7)
|
4,996,348
|
14.62%
|
||
Alex
Mei(8)
|
319,500
|
*%
|
||
Arthur
Knapp(9)
|
497,117
|
1.45%
|
||
Richard
Singh(10)
|
126,500
|
*%
|
||
Adam
J. Epstein(11)
|
207,612
|
*%
|
||
Richard
L. Hunter(12)
|
132,614
|
*%
|
||
Russell
J. Knittel(13)
|
132,614
|
*%
|
||
Directors
and executive officers as a group (7 persons)(14)
|
6,412,305
|
18.29%
|
|
*
|
Represents
less than 1% of the issued and outstanding shares of our common stock as
of November 30, 2010.
|
|
(1)
|
Except
as otherwise indicated, the persons named in this table have sole voting
and investment power with respect to all shares of common stock shown as
beneficially owned by them, subject to community property laws where
applicable and to the information contained in the footnotes to this
table.
|
|
(2)
|
Under
the rules of the SEC, a person is deemed to be the beneficial owner of
shares that can be acquired by such person within 60 days upon the
exercise of their options. Except as otherwise noted, options
granted under our Stock Incentive Plan are immediately exercisable,
subject to our right to repurchase unvested shares upon termination of
employment or other service at a price equal to the option exercise
price.
|
10
|
(3)
|
Calculated
on the basis of 34,165,718 shares of common stock outstanding as of
November 30, 2010, provided that any additional shares of common stock
that a stockholder has the right to acquire within 60 days after the
date of this filing are deemed to be outstanding for the purpose of
calculating that stockholder’s percentage beneficial
ownership.
|
|
(4)
|
Columbus
Capital Management, LLC (“CCM”)
is the general partner of Columbus Capital Partners, L.P. (“CCP”)
and Matthew D. Ockner is the managing member of CCM. Mr. Ockner
exercises sole voting and dispositive power over the
shares. CCM, CCP and Mr. Ockner each disclaim beneficial
ownership with respect to these shares, as set forth in Schedule 13G filed
with the SEC on August 12, 2010.
|
|
(5)
|
Represents
shares of common stock and warrants immediately exercisable warrants to
purchase 824,544 shares of our common stock held by Empire Capital
Partners, LP (“Empire
Capital”), Empire Capital Partners, LTD (the “Empire
Overseas Fund”) and Empire Capital Partners Enhanced Master Fund,
LTD (the “Enhanced
Master Fund”, and together with Empire Capital and the Empire
Overseas Fund, the “Empire
Funds”). Empire Capital has the power to dispose
of and the power to vote the shares of common stock beneficially owned by
it, which power may be exercised by its general partner, Empire GP, LLC
(“Empire
GP”). Empire GP does not directly own any shares of
common stock and/or warrants. By reason of the provisions of
Rule 13d-3 of the Securities Exchange Act of 1934 (the “Act”),
Empire GP may be deemed to beneficially own the shares owned by Empire
Capital. The Empire Overseas Fund and the Enhanced Master Fund
each have the power to dispose of and the power to vote the shares of
common stock and/or warrants beneficially owned by them, which power may
be exercised by their investment manager, Empire Capital Management, LLC
(“Empire
Management”). Empire Management does not directly own
any shares of common stock and/or warrants. By reason of the
provisions of Rule 13d-3 of the Act, Empire Management may be deemed to
beneficially own the shares owned by the Empire Overseas Fund and the
Enhanced Master Fund. Messrs. Scott A. Fine and Peter J.
Richards are the Members of Empire GP and Empire Capital, and in their
capacities direct the operations of Empire GP and Empire Capital. By
reason of the provisions of Rule 13d-3 of the Act, each may be deemed to
beneficially own the shares beneficially owned by Empire Capital, the
Empire Overseas Fund and the Enhanced Master Fund. Empire
Management, Empire GP, the Empire Funds, Mr. Fine and Mr. Richards each
disclaim any beneficial ownership of the
shares.
|
|
(6)
|
Includes
2,400,000 shares held by Pearl Investments LLC. Mr. Armagast
has sole voting and dispositive power with respect to these
shares. Also includes 1,468,800 shares held by The Arthur P.
Armagast Trust and 200,000 shares held by The Christine Armagast Trust and
of which Mr. Armagast disclaims any interest. Mr. Armagast is
the trustee of both trusts.
|
|
(7)
|
All
of the shares are held by the Petersen Family Trust. Mr.
Petersen, as trustee of this trust, has voting and dispositive power over
these securities.
|
|
(8)
|
Includes
319,500 shares subject to immediately exercisable options, of which
265,750 shares will be vested within 60 days of November 30,
2010.
|
|
(9)
|
Includes
50,000 shares subject to immediately exercisable options, of which 4,166
shares will be vested within 60 days of November 30,
2010.
|
|
(10)
|
Includes
100,000 shares subject to immediately exercisable options, of which none
will be vested within 60 days of November 30,
2010.
|
|
(11)
|
Includes
(i) immediately exercisable warrants to purchase 16,666 shares of our
common stock, and (ii) 132,614 shares subject to immediately exercisable
options, of which 34,953 shares will be vested within 60 days of
November 30, 2010.
|
|
(12)
|
Includes
132,614 shares subject to immediately exercisable options, of which 34,953
shares will be vested within 60 days of November 30,
2010.
|
11
|
(13)
|
Includes
132,614 shares subject to immediately exercisable options, of which 25,786
shares will be vested within 60 days of November 30,
2010.
|
|
(14)
|
See
notes 9 through 13. Includes 884,008 shares subject to
options and warrants that are currently exercisable or will become
exercisable within 60 days of November 30, 2010 that are beneficially
owned by current executive officers and
directors.
|
12
Selling
Stockholders
An
aggregate of 9,139,154 shares of common stock, which consists of 7,139,960
shares of common stock and 1,999,194 shares of common stock issuable upon
the exercise of our warrants, may be offered for sale and sold from time to time
pursuant to this prospectus by the Selling Stockholders. The term
“Selling Stockholders” includes the stockholders listed below and their
pledgees, assignees, or other successors-in-interest. We have agreed to
register all of the shares offered hereby for resale by the Selling Stockholders
under the Securities Act and to pay all of the expenses in connection with such
registration and the sale of the shares, other than selling commissions and the
fees and expenses of counsel and other advisors to the Selling
Stockholders. Information concerning the Selling Stockholders may
change from time to time, and any changed information will be set forth if and
when required in prospectus supplements or other appropriate forms permitted to
be used by the SEC.
Except as
disclosed under this prospectus, none of the Selling Stockholders has held a
position or office or had a material relationship with us within the past three
years other than as a result of the ownership of our common stock or other
securities.
The
following table sets forth, for each of the Selling Stockholders to the extent
known by us, the number of shares of our common stock beneficially owned, the
number of shares of our common stock offered hereby and the number of shares and
percentage of outstanding common stock to be owned after completion of this
offering, assuming all shares offered hereby are sold.
Unless
otherwise indicated, the Selling Stockholders have sole voting and investment
power with respect to their shares of common stock. All of the information
contained in the table below is based upon information provided to us by the
Selling Stockholders, and we have not independently verified this information.
The Selling Stockholders may have sold, transferred or otherwise disposed
of, or may sell, transfer or otherwise dispose of, at any time or from time to
time since the date on which it provided the information regarding the shares
beneficially owned, all or a portion of the shares beneficially owned in
transactions exempt from the registration requirements of the Securities
Act.
The
number of shares outstanding and the percentages of beneficial ownership are
based on 34,165,718 shares of our common stock issued and outstanding as of
November 30, 2010.
For the
purposes of the following table, the number of shares of our common stock
beneficially owned has been determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and such
information is not necessarily indicative of beneficial ownership for any other
purpose. Under Rule 13d-3, beneficial ownership includes any shares as to
which a selling stockholder has sole or shared voting power or investment power
and also any shares which that selling stockholder has the right to acquire
within 60 days of the date of this prospectus through the exercise of any stock
option, restricted stock unit, warrant or other rights.
In
connection with various prior private placements, we issued shares of common
stock and warrants that are or have been exercisable for either shares of our
common stock. The transactions under which such shares of common
stock warrants have been issued and the terms of each such warrants instruments
are described below. The shares underlying each such warrant are
registered pursuant to this registration statement.
Common
Stock
In
November 2010, we issued an aggregate of 7,139,960 shares of our common stock at
$3.08125 per share in connection with a private placement. These
shares were issued in the United States in reliance of Rule 506 of Regulation D
under the Securities Act and all recipients of our common stock were
“accredited” as defined under the rules of the SEC. As part of the
private placement offering, we also issued warrants to purchase up to (i)
1,784,996 shares of our common stock at $5.25 per share (the “$5.25
Warrants”) and (ii) 214,198 shares of our common stock at $3.08125 per
share (the “$3.08125
Warrants”). The terms of the $5.25 Warrants and the $3.08125
Warrants are described immediately below.
13
Common
Stock Warrants
On
November 2, 2010 we issued warrants to various investors and our placement agent
in connection with a private placement transaction. The investors
received warrants to purchase up to an aggregate of 1,784,996 shares of our
common stock at an exercise price of $5.25 per share (the “Purchase
Warrants”). The Purchase Warrants will become exercisable on
May 3, 2011, will expire on November 2, 2015 and may be exercised by the holders
on a cashless basis. Furthermore, we issued a warrant to our
placement agent to purchase up to 214,198 shares of our common stock at an
exercise price of $3.08125 per share (the “Placement Agent
Warrant”). The Placement Agent Warrant is exercisable until
November 2, 2015 and may be exercised on a cashless basis. In
addition, the Placement Agent Warrant contains piggyback registration
rights. Specifically, upon written notice from us of our intention to
file a registration statement, the placement agent may provide us with a written
request specifying the number of shares of common stock currently or
subsequently owned by the placement agent to be included in such registration
statement.
Shares of Common Stock Beneficially
Owned Prior to this Offering
|
Shares of Common Stock
Beneficially Owned After
this Offering
|
|||||||||
Name and Address of Holder
|
Number of Shares
Owned Prior to
this Offering
|
% of
Outstanding
Shares1
|
Number of
Offered Shares
|
Number of
Shares
Beneficially
Owned after
the
Offering
|
% of
Outstanding
Shares1
|
|||||
White
Rock Capital Partners, LP2
313
Turtle Creek Suite 800
Dallas,
TX 75219
|
300,000
|
0.88
|
375,000
|
-
|
-
|
|||||
First
Bank & Trust as Custodian of Ronald L. Chez IRA
820
Church Street
Evanston,
IL 60201
|
759,6323
|
2.21%
|
324,543
|
499,998
|
1.46%
|
|||||
WHI
Technology Fund LLC4
191
N. Wacker Drive Suite 1500
Chicago,
IL 60606
|
331,1345
|
0.97%
|
101,419
|
249,999
|
*
|
|||||
Empire
Capital Partners, LTD. 6
c/o
Empire Capital Management, LLC
1
Gorham Island Suite 201
Westport,
CT 06880
|
764,5027
|
2.21%
|
421,785
|
427,074
|
1.23%
|
|||||
Empire
Capital Partners Enhanced Master Fund, LTD.6
c/o
Empire Capital Management, LLC
1
Gorham Island Suite 201
Westport,
CT 06880
|
1,104,3638
|
3.19%
|
659,675
|
576,623
|
1.66%
|
|||||
Empire
Capital Partners, LP 9
c/o
Empire Capital Management, LLC
1
Gorham Island Suite 201
Westport,
CT 06880
|
929,31010
|
2.68%
|
541,258
|
496,304
|
1.43%
|
|||||
|
||||||||||
STG
Capital Fund LTD11
c/o
STG Capital Management, LP
780
Third Avenue Suite 301
New
York, NY 10017
|
1,162,96412
|
3.40%
|
1,233,772
|
175,947
|
*
|
14
STG
Capital Partners (QP) LP13
780
Third Avenue Suite 301
New
York, NY 10017
|
759,754 | 14 | 2.22 | % | 794,627 | 124,053 | * | |||||||||||||
SPI
Hawaii Investments, LP15
88
Kearny Street Suite 1818
San
Francisco, CA 94108
|
150,000 | 0.44 | % | 187,500 | - | - | ||||||||||||||
Leaf
Investment Partners, LP16
515
Madison Avenue Suite 4200
New
York, NY 10022
|
1,070,993 | 3.13 | % | 1,338,742 | - | - | ||||||||||||||
Tiburon
Opportunity Fund, LP17
c/o
Bortel Investment Management LLC
13313
Point Richmond Beach Road N.W.
Gig
Harbor, WA 98332
|
64,908 | 0.19 | % | 81,135 | - | - | ||||||||||||||
Carpe
Diem Partners LLC18
3400
N. Lake Shore Drive
Chicago,
IL 60657
|
81,135 | 0.24 | % | 101,419 | - | - | ||||||||||||||
Cross
Cap Partners, LP19
5851
San Felipe Suite 230
Houston,
TX 77057
|
26,957 | 0.08 | % | 33,697 | - | - | ||||||||||||||
Cross
Cap Partners Enhanced, LP20
5851
San Felipe Suite 230
Houston,
TX 77057
|
183,996 | 0.54 | % | 229,995 | - | - | ||||||||||||||
Grand
Slam Capital Master Fund Ltd.21
2200
Fletcher Avenue
Fort
Lee, NJ 07024
|
205,000 | 22 | 0.60 | % | 125,000 | 105,000 | * | |||||||||||||
Great
Gable Fund II, LP23
301
Battery Street
San
Francisco, CA 94111
|
119,292 | 0.35 | % | 149,115 | - | - | ||||||||||||||
Great
Gable Master Fund Limited23
301
Battery Street
San
Francisco, CA 94111
|
497,340 | 1.46 | % | 621,675 | - | - | ||||||||||||||
Jon
D. and Linda W. Gruber Trust24
50
Osgood Place
San
Francisco, CA 94133
|
97,400 | 0.29 | % | 121,750 | - | - | ||||||||||||||
Lagunitas
Partners L.P.25
50
Osgood Place
San
Francisco, CA 94133
|
227,143 | 0.66 | % | 283,929 | - | - | ||||||||||||||
Brad
Stroh
25
Saddleback
Portola,
CA 94028
|
162,272 | 0.47 | % | 202,840 | - | - | ||||||||||||||
Kathryn
Luff
234
Main Street
New
Canaan, CT 06840
|
16,227 | 0.05 | % | 20,284 | - | - |
15
Thomas
Shepard
173
West Blithedale
Mill
Valley, CA 94941
|
8,114 | 0.02 | % | 10,143 | - | - | ||||||||||||||
Richard
Wright
1900
S. Main Street
Lakeport,
CA 95453
|
8,114 | 0.02 | % | 10,143 | - | - | ||||||||||||||
Anthony
B. Low-Beer
c/o
Scarsdale Equities
10
Rockefeller Plaza Suite 720
New
York, NY 10020
|
250,000 | 26 | 0.73 | % | 125,000 | 150,000 | * | |||||||||||||
Cynthia
A. Kohn
c/o
Scarsdale Equities
10
Rockefeller Plaza Suite 720
New
York, NY 10020
|
25,000 | 0.07 | % | 31,250 | - | - | ||||||||||||||
Mechele
Plotkin
c/o
Scarsdale Equities
10
Rockefeller Plaza Suite 720
New
York, NY 10020
|
10,000 | 0.03 | % | 12,500 | - | - | ||||||||||||||
Phyllis
Esposito
c/o
Scarsdale Equities
10
Rockefeller Plaza Suite 720
New
York, NY 10020
|
125,000 | 27 | 0.37 | % | 62,500 | 75,000 | * | |||||||||||||
Sander
A. Flaum
c/o
Scarsdale Equities
10
Rockefeller Plaza Suite 720
New
York, NY 10020
|
25,000 | 0.07 | % | 31,250 | - | - | ||||||||||||||
John
F. Kohn
c/o
Scarsdale Equities
10
Rockefeller Plaza Suite 720
New
York, NY 10020
|
25,000 | 0.07 | % | 31,250 | - | - | ||||||||||||||
The
Thunen Family Trust28
c/o
Scarsdale Equities
10
Rockefeller Plaza Suite 720
New
York, NY 10020
|
100,000 | 0.29 | % | 125,000 | - | - | ||||||||||||||
Almond
Family Foundation29
P.O.
Box 1078
Ross,
CA 94957
|
150,000 | 0.44 | % | 187,500 | - | - | ||||||||||||||
Almond
Investment Fund LLC30
P.O.
Box 1078
Ross,
CA 94957
|
655,000 | 31 | 1.91 | % | 200,000 | 495,000 | 1.44 | % | ||||||||||||
Contra
Partners, LP32
Attn:
Russell M. Sarachek
711
Fifth Avenue 15th Floor
New
York, NY 10022
|
104,408 | 0.39 | % | 130,510 | - | - |
16
Stephen
Dow Hartzog
47
Ridge Ave.
Mill
Valley, CA 94941
|
15,000 | 0.04 | % | 18,750 | - | - | ||||||||||||||
Merriman
Curhan Ford & Co.33
600
California Street, 9th
Floor
San
Francisco, CA 94108
|
422,746 | 34 | 1.22 | % | 214,198 | 208,548 | * |
*
Less than one percent of the total number of shares of common issued and
outstanding.
1.
|
Based
on 34,165,718 shares of common stock issued and outstanding as of November
30, 2010.
|
2.
|
White
Rock Management, L.P., a Texas limited partnership (“White Rock
Management”) is the general partner of White Rock Capital Partners,
L.P., a Texas limited partnership (“White Rock
Partners”). The general partner of White Rock Management
is White Rock, Inc. Thomas U. Barton and Joseph U. Barton are
the shareholders of White Rock, Inc, and in such capacities, each of
Thomas U. Barton and Joseph U. Barton may be deemed to be the beneficial
owner of these shares.
|
3.
|
Includes
166,666 shares of common stock issuable upon the exercise of outstanding
warrants.
|
4.
|
William
Harris Investors, Inc. (“WHI”)
is the managing member of and investment advisor to WTI Technology Fund,
LLC (“WHI
Technology Fund”). Each of Michael S. Resnick, executive
vice president of WHI, and Len Wanger, portfolio manager of the WHI
Technology Fund, may exercise voting and dispositive power with respect to
these shares on behalf of WHI.
|
5.
|
Includes
83,333 shares of common stock issuable upon the exercise of outstanding
warrants.
|
6.
|
Empire
Capital Management, L.L.C. is the investment manager to, and has
investment discretion over, the shares held by Empire Capital
Partners, Ltd. and Empire Capital Partners Enhanced Master Fund,
Ltd. Scott A. Fine and Peter J. Richards are the managing
members of Empire Capital Management L.L.C. and, in such capacity,
have voting and dispositive power with respect to such shares. Each
of Empire Capital Partners, Ltd., Empire Capital Partners Enhanced
Master Fund, Ltd., Scott A. Fine and Peter J. Richards
disclaims beneficial ownership of these
shares.
|
7.
|
Includes
142,358 shares of common stock issuable upon the exercise of outstanding
warrants.
|
8.
|
Includes
192,208 shares of common stock issuable upon the exercise of outstanding
warrants.
|
9.
|
Empire GP,
L.L.C. is the general partner of, and has investment discretion over, the
shares held by Empire Capital Partners, LP. Scott A. Fine
and Peter J. Richards are the managing members of Empire GP,
L.L.C. and, in such capacity, have voting and dispositive power with
respect to such shares. Each of Empire Capital Partners, LP,
Scott A. Fine and Peter J. Richards disclaims beneficial ownership of
these shares.
|
10.
|
Includes
165,435 shares of common stock issuable upon the exercise of outstanding
warrants.
|
11.
|
STG
Capital, LLC (“STG
Capital”) is the general partner of STG Capital Fund, Ltd (“STG
Fund”). As the Managing Member of STG Capital, Steven T.
Glass has sole voting and dispositive power over the shares held by STG
Fund.
|
12.
|
Includes
58,649 shares of common stock issuable upon the exercise of outstanding
warrants.
|
13.
|
STG
Capital, LLC (“STG
Capital”) is the general partner of STG Capital Partners (QP), LP
(“STG
Partners”). As the Managing Member of STG Capital,
Steven T. Glass has sole voting and dispositive power over the shares held
by STG Partners.
|
14.
|
Includes
41,351 shares of common stock issuable upon the exercise of outstanding
warrants.
|
17
15.
|
Prism
Capital Corp is the general partner of SPI Hawaii Investments,
LP. As the President, Dennis J. Wong has voting and dispositive
power with respect to such shares.
|
16.
|
S
Squared Capital, LLC is the general partner of Leaf Investment Partners,
L.P., and Kenneth Goldblatt and Seymour L. Goldblatt are the managing
members of S Squared Capital, LLC. As such, Kenneth Goldblatt
and Seymour L. Goldblatt exercise shared voting and dispositive power with
respect to these shares. Each of S Squared Capital, LLC,
Kenneth Goldblatt and Seymour L. Goldblatt disclaims beneficial ownership
of these securities except to the extent of his or its pecuniary interest
therein.
|
17.
|
Bortel
Investment Management, LLC is the general partner of Tiburon Opportunity
Fund, L.P., and Peter Bortel is the managing member of Bortel Investment
Management, LLC. As such, Peter Bortel exercises sole voting
and dispositive power with respect to these shares. Each of
Bortel Investment Management, LLC and Peter Bortel disclaims beneficial
ownership of these securities except to the extent of his or its pecuniary
interest therein.
|
18.
|
Carpe
Diem Capital Management LLC (“Carpe Diem
Capital”), as investment manager for Carpe Diem Partners LLC
(“CDP”),
ZPII, LP (“ZPI”),
as the manager and sole member of Carpe Diem Capital, C3 Management Inc.
(“C3”),
as the general partner of ZPII, and John D. Ziegelman, as the Chairman of
the Board, President and Treasurer and the beneficial owner of I00% of the
outstanding shares of common stock of C3, each may be deemed to have
beneficial ownership of the shares owned by CDP which are being registered
hereunder.
|
19.
|
CrossCap
General Partners, LP is the general partner of CrossCap Partners, LP and
as such exercises sole voting and dispositive power with respect to these
shares.
|
20.
|
CrossCap
Enhanced GP, LP is the general partner of CrossCap Partners Enhanced, LP
and exercises sole voting and dispositive power with respect to these
shares.
|
21.
|
Mitchell
Sacks, as Partner of Grand Slam Capital Master Fund Ltd (“Grand Slam
Capital”), has sole voting and dispositive power over the shares
held by Grand Slam Capital.
|
22.
|
Includes
35,000 shares of common stock issuable upon the exercise of outstanding
warrants.
|
23.
|
Great
Gable Partners, LP, (“Gable
Partners”), is the investment adviser to Great Gable Fund II, LP
and Great Gable Master Fund Limited. Each of Jacques Soenens
and Simon Baker are the managing partners of Gable Partners and as such
has shared voting and dispositive power with respect to these
shares.
|
24.
|
Jon
D. Gruber, as Trustee of the Jon D. and Linda W. Gruber Trust, has sole
voting and dispositive power with respect to these
shares.
|
25.
|
Gruber
& McBaine Capital Management, LLC (“GMCM”)
is the general partner of Lagunitas Partners, L.P., and Jon D. Gruber and
J. Patterson McBaine are the managing members of GMCM. As such,
Jon D. Gruber and J. Patterson McBaine exercise shared voting and
dispositive power with respect to these shares. Each of GMCM,
Jon D. Gruber and J. Patterson McBaine disclaims beneficial ownership of
these securities except to the extent of his or its pecuniary interest
therein.
|
26.
|
Includes
50,000 shares of common stock issuable upon the exercise of outstanding
warrants.
|
27.
|
Includes
25,000 shares of common stock issuable upon the exercise of outstanding
warrants.
|
28.
|
Garret
G. Thunen and Carol Thunen, as Trustees of The Thunen Family Trust, have
shared voting and dispositive power with respect to these
shares.
|
29.
|
Charles
M. Almond, as Trustee of the Almond Family Foundation, has sole voting and
dispositive power with respect to these shares. Mr. Almond
disclaims any beneficial ownership over such
shares.
|
30.
|
Charles
M. Almond, as manager of Almond Investment Fund, LLC, has sole voting and
dispositive power with respect to these shares. Mr. Almond
disclaims any beneficial ownership over such
shares.
|
18
31.
|
Includes
165,000 shares of common stock issuable upon the exercise of outstanding
warrants.
|
32.
|
Contra
Partners, LLC is the General Partner of Contra Partners,
LP. Russell M. Sarachek, the Managing Member of Contra
Partners, LLC has sole voting and dispositive power over the
shares. Mr. Sarachek disclaims beneficial ownership over these
shares except to the extent of his pecuniary interest in Contra Partners,
LLC.
|
33.
|
Merriman
Curhan Ford & Co. (“Merriman
Curhan”) is an SEC registered broker-dealer that acted as placement
agent in our November 2, 2010 private placement. Each of Peter
Coleman and Michael Doran, in their respective capacities as Chief
Executive Officer and General Counsel of Merriman Curhan, have shared
voting and dispositive power over these
shares.
|
34.
|
Includes
385,415 shares of common stock issuable upon the exercise of outstanding
warrants.
|
19
Plan
Of Distribution
Each
Selling Stockholder of our common stock and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock included in this prospectus on The NASDAQ Capital Market or any
other stock exchange, market or trading facility on which the shares are traded
or in private transactions. These sales may be at fixed or negotiated
prices. A Selling Stockholder may use any one or more of the
following methods when selling shares:
|
§
|
ordinary brokerage transactions
and transactions in which the broker-dealer solicits
purchasers;
|
|
§
|
block trades in which the
broker-dealer will attempt to sell the shares as agent but may position
and resell a portion of the block as principal to facilitate the
transaction;
|
|
§
|
purchases by a broker-dealer as
principal and resale by the broker-dealer for its
account;
|
|
§
|
an exchange distribution in
accordance with the rules of the applicable
exchange;
|
|
§
|
privately negotiated
transactions;
|
|
§
|
settlement of short sales entered
into after the effective date of the registration statement of which this
prospectus is a part;
|
|
§
|
broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per
share;
|
|
§
|
through the writing or settlement
of options or other hedging transactions, whether through an options
exchange or otherwise;
|
|
§
|
a combination of any such methods
of sale; or
|
|
§
|
any other method permitted
pursuant to applicable law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the Selling Stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this Prospectus, in the case of an
agency transaction not in excess of a customary brokerage commission in
compliance with NASD Rule 2440 of the Financial Industry Regulatory Authority
(“FINRA”);
and in the case of a principal transaction a markup or markdown in compliance
with FINRA’s NASD IM-2440.
In
connection with the sale of the common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The
Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions for the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
20
The
Selling Stockholders and any broker dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling
Stockholder has informed us that it does not have any written or oral agreement
or understanding, directly or indirectly, with any person to distribute the
common stock.
We are
required to pay certain fees and expenses incurred by us incident to the
registration of the shares, including SEC filing fees. We have agreed to
indemnify the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Selling
Stockholders may be deemed to be “underwriters” within the meaning of the
Securities Act and have advised us that they will comply with the applicable
prospectus delivery requirements in connection with this offering. In
addition, any securities covered by this prospectus which qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather
than under this prospectus. Each Selling Stockholder has advised us
that they have not entered into any written or oral agreements, understandings
or arrangements with any underwriter or broker-dealer regarding the sale of the
shares registered hereunder. There is no underwriter or coordinating
broker acting in connection with the proposed sale of the shares registered
hereunder by the Selling Stockholders.
We agreed
to keep this prospectus effective until the earlier of (i) the date on which the
shares may be resold by the Selling Stockholders without registration and
without regard to any volume limitations by reason of Rule 144 under the
Securities Act or any other rule of similar effect; (ii) all of the shares have
been sold pursuant to the prospectus or Rule 144 under the Securities Act or any
other rule of similar effect or (iii) three (3) years from October 29,
2010. The shares registered hereunder will be sold only through
registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, such shares may not
be sold 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.
Under
applicable rules and regulations under the Exchange Act, any person engaged in
the distribution of the shares registered hereunder may not simultaneously
engage in market making activities with respect to the common stock for the
applicable restricted period, as defined in Regulation M, prior to the
commencement of the distribution. In addition, the Selling
Stockholders will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including Regulation M, which may limit
the timing of purchases and sales of shares of the common stock by the Selling
Stockholders or any other person. We will make copies of this
prospectus available to the Selling Stockholders and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or prior to the
time of the sale, except where there is an exemption from such delivery
requirements under applicable securities laws.
Legal
Matters
The
validity of the common stock offered in this prospectus will be passed upon for
us by Mayer Brown LLP.
Experts
The
consolidated financial statements of OCZ Technology Group, Inc. and subsidiaries
for each of the three fiscal years in the three-year period
ended February 28, 2010 have been included in this prospectus and in
the registration statement in reliance upon the reports of both Crowe Clark
Whitehill LLP (On October 1, 2010, Horwath Clark Whitehill LLP changed its name
to Crowe Clark Whitehill LLP) for the fiscal years ended February 29, 2008 and
February 28, 2009 and Crowe Horwath LLP for the fiscal year ended February 28,
2010 , both of which are independent registered public accounting firms, as
stated in their respective reports dated May 1, 2009 and May 20, 2010 each
of which is incorporated by reference herein, and such consolidated financial
statements have been so incorporated by reference herein in reliance upon the
respective reports of such firms given upon their authority as experts in
accounting and auditing.
21
Material
Changes
There
have been no material changes since February 28, 2010 that have not been
described in our Annual Report on Form 10-K, a Form 10-Q or Form 8-K filed under
the Exchange Act, or this prospectus.
Where
You Can Find More Information
We have
filed with the SEC a Registration Statement on Form S-1 (such Registration
Statement, together with all amendments and exhibits thereto, being hereinafter
referred to as the “Registration
Statement”) under the Securities Act, for the registration under the
Securities Act of the shares of common stock offered hereby. This
prospectus does not contain all the information set forth in the Registration
Statement; certain parts of which are omitted in accordance with the rules and
regulations of the SEC. Reference is hereby made to the Registration
Statement which contains further information with respect to us and our common
stock. Statements herein concerning the provisions of documents filed as
exhibits to the Registration Statement are necessarily summaries of such
documents, and each such statement is qualified by reference to the copy of the
applicable document filed with the SEC.
We are
subject to the reporting requirements of the Exchange Act, and in accordance
therewith file reports, including annual and quarterly reports, proxy statements
and other information with the SEC. Such reports, proxy statements and
other information may be inspected and copied at prescribed rates at the public
reference facilities maintained by the SEC at the SEC’s Public Reference Room,
100 F Street, NE, Washington, D.C. 20549 on official business days during
the hours of 10:00 a.m. to 3:00 p.m. Please call the SEC at 1-800-SEC-0330
for more information about the operation of the Public Reference Room. Our
SEC filings are also available to the public at the SEC’s website at http://www.sec.gov.
You may
obtain a copy of any of our filings, at no cost, by writing or telephoning us
at:
6373 San
Ignacio Avenue
San Jose,
California 95119
(408)
733-8400
Incorporation
of Certain Information by Reference
We are “incorporating by reference”
certain 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 the documents incorporated by reference is considered to be part
of this prospectus. Statements contained in documents that we file
with the SEC and that are incorporated by reference in this prospectus will
automatically update and supersede information contained in this prospectus,
including information in previously filed documents or reports that have been
incorporated by reference in this prospectus, to the extent the new information
differs from or is inconsistent with the old information. Except as
set forth below, the SEC file number for the documents incorporated by reference
in this prospectus is 001-3465.
We have
filed the following documents with the SEC and they are incorporated herein by
reference as of their respective dates of filing:
|
·
|
Our
Annual Report on Form 10-K for the fiscal year ended February 28, 2010, as
filed with the SEC on May 20, 2010.
|
|
·
|
Our
Quarterly Report on Form 10-Q for the quarterly period ended May 31, 2010,
as filed with the SEC on July 12, 2010, Amendment No. 1 thereto on Form
10Q/A, as filed with the SEC on July 19, 2010 and the Form 10-Q for the
quarterly period ended August 31, 2010, as filed with the SEC on October
15, 2010.
|
22
|
·
|
Our
definitive Proxy Statement filed in connection with the Annual meeting of
Stockholders held on November 15, 2010, as filed with the SEC on October
15, 2010.
|
|
·
|
Our
Current Reports on Form 8-K, as filed with the SEC on March 26, 2010,
March 29, 2010, April 8, 2010, April 13, 2010, May 11, 2010, May 12, 2010,
May 14, 2010, May 27, 2010, June 3, 2010, June 28, 2010, June 29, 2010,
August 18, 2010, October 12, 2010, November 4, 2010 and November 16,
2010.
|
A
statement contained in a document incorporated by reference into this prospectus
shall be deemed to be modified or superseded for purposes of this prospectus to
the extent that a statement contained in this prospectus, any prospectus
supplement or in any other subsequently filed document which is also
incorporated in this prospectus modifies or replaces such
statement. Any statements so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
You may request a copy of these
documents, which will be provided to you at no cost, by writing or telephoning
us at:
6373 San
Ignacio Avenue
San Jose,
California 95119
(408)
733-8400
You should rely only on the information
contained in this prospectus, including information incorporated by reference as
described above, or any prospectus supplement or that we have specifically
referred you to. We have not authorized anyone else to provide you with
different information. You should not assume that the information in
this prospectus or any prospectus supplement is accurate as of any date other
than the date on the front of those documents or that any document incorporated
by reference is accurate as of any date other than its filing
date. You should not consider this prospectus to be an offer or
solicitation relating to the securities in any jurisdiction in which such an
offer or solicitation relating to the securities is not
authorized. Furthermore, you should not consider this prospectus to
be an offer or solicitation relating to the securities if the person making the
offer or solicitation is not qualified to do so, or if it is unlawful for you to
receive such an offer or solicitation.
23
Through
and including 90 days after the date of this prospectus, all dealers effecting
transactions in these securities, whether or not participating in this offering,
may be required to deliver a prospectus. This is in addition to the
dealers’ obligation to deliver a prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
7,139,960
Shares of Common Stock
1,999,194
Shares of Common Stock issuable upon the exercise of outstanding
Warrants
OCZ
Technology Group, Inc.
PROSPECTUS
,
2010
24
Item
13 Other Expenses of
Issuance and Distribution
The
following table sets forth our estimates of the expenses in connection with the
sale and distribution of the securities being registered, all of which will be
paid by us.
Item
|
Amount
|
|||
SEC
registration fee
|
$ | 3,000 | ||
Legal
fees and expenses
|
$ | 85,000 | ||
Accounting
fees and expenses
|
$ | 15,000 | ||
Printing
fees and expenses
|
$ | 2,500 | ||
Transfer
Agent Fees
|
$ | 3,000 | ||
Miscellaneous
|
$ | 6,500 | ||
Total
|
$ | 115,000 |
Item
14 Indemnification of
Directors and Officers
As
permitted by the DGCL, our Certificate of Incorporation provides that our
directors will not be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability:
|
§
|
for any breach of the director’s
duty of loyalty to us or our
stockholders;
|
|
§
|
for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of
law;
|
|
§
|
under Section 174 of the
DGCL, relating to unlawful payment of dividends or unlawful stock purchase
or redemption of stock; or
|
|
§
|
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.
Under
Section 145 of the DGCL, a corporation may indemnify a director, officer,
employee or agent of the corporation (or a person who is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) against
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. In the case of an action brought by or in the right of a
corporation, the corporation may indemnify a director, officer, employee or
agent of the corporation (or a person who is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) against
expenses (including attorneys’ fees) actually and reasonably incurred by him if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
may be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent a court finds that, in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper. Section 145 of the DGCL also provides that a
corporation has the power to maintain insurance on behalf of its directors and
officers against any liability asserted against those persons and incurred by
them in their capacity as directors or officers, as applicable, whether or not
the corporation would have the power to indemnify them against liability under
the provisions of Section 145 of the DGCL.
25
Our
Certificate of Incorporation and Bylaws also provide for the indemnification of
our directors and officers to the fullest extent authorized by the
DGCL. The indemnification provided under our Certificate of
Incorporation and Bylaws includes the right to be paid expenses in advance of
any proceeding for which indemnification may be payable, provided that the
payment of these expenses incurred by a director or officer in advance of the
final disposition of a proceeding may be made only upon delivery to us of an
undertaking by or on behalf of the director or officer to repay all amounts so
paid in advance if it is ultimately determined that the director or officer is
not entitled to be indemnified. We intend to maintain director and
officer liability insurance on behalf of our directors and
officers.
The
foregoing summaries are necessarily subject to the complete text of the DGCL,
our Certificate of Incorporation and Bylaws.
Item
15 Recent Sales of
Unregistered Securities
Information
required by this section is incorporated herein by reference to Part II, Item 5
entitled “Market for
Registrant’s Common Equity. Related Stockholder Matters and Issuer
Purchases of Equity Securities” under the caption entitled “Recent Sales of
Unregistered Securities” of OCZ Technology Group, Inc.’s Annual
Report.
The
following information is in addition to the information already set forth under
the corresponding captions identified below in Part II, Item 5 entitled “Market for
Registrant’s Common Equity. Related Stockholder matters and Issuer Purchases of
Equity Securities” under the caption entitled “Recent Sales of
Unregistered Securities” of our Annual Report.
Recent
Sales of Unregistered Securities
In
November 2010, we issued an aggregate of 7,139,960 shares of our common stock at
$3.08125 per share in connection with a private placement. These
shares were issued in the United States in reliance of Rule 506 of Regulation D
under the Securities Act and all recipients of our common stock were
“accredited” as defined under the rules of the SEC. As part of the
private placement offering, we also issued warrants to purchase up to (i)
1,784,996 shares of our common stock at $5.25 per share (the “$5.25
Warrants”) and (ii) 214,198 shares of our common stock at $3.08125 per
share (the “$3.08125
Warrants”). The warrants have been issued in reliance on the
exemptions provided by Section 4(2) of the Securities Act. In
addition, we have a commitment to issue a warrant for up to 53,549 shares of our
common stock at $5.25 per share. The $5.25 Warrants are exercisable
on May 3, 2011, will expire on November 2, 2015 and may be exercised by the
holders on a cashless basis. The $3.08125 Warrants are immediately
exercisable, will expire on November 2, 2015 and may be exercised by the holder
on a cashless basis. In addition, the $3.08125 Warrants contain
certain piggyback registration rights.
Item
16 Exhibits and
Financial Statements
(a)
|
See
the Exhibit Index of this Registration Statement for a list of exhibits
filed as part of this Registration Statement,
which Exhibit Index is incorporated herein by
reference.
|
(b)
|
Financial
statements meeting the requirements of Regulation S-X are incorporated
herein by reference
to
Part II, Item 8 entitled “Financial
Statements and Supplementary Data” of OCZ Technology Group, Inc.’s
Annual Report.
|
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;
26
ii. To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
iii.
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such
date of first use.
(b) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such
issue.
27
Signatures
Pursuant
to the requirements of the Securities Act, the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in San Jose, California on December 10, 2010.
OCZ
Technology Group, Inc.
|
|
By:
|
/s/
Ryan M. Petersen
|
Ryan
M. Petersen
|
|
President
and Chief Executive
Officer
|
Power
of Attorney
Known
By All Men by these presents , that each person whose signature appears
below constitutes and appoints Ryan M. Petersen as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all Amendments hereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on the dates
indicated.
Name
|
Title
|
Date
|
||
/s/
Ryan M. Petersen
|
Chief
Executive Officer and Director
|
December
10, 2010
|
||
Ryan
M. Petersen
|
(Principal
Executive Officer)
|
|||
Interim
Chief Financial Officer
|
December
10, 2010
|
|||
/s/
Arthur F. Knapp, Jr.
|
(Principal
Financial and Accounting
Officer)
|
|||
Arthur
F. Knapp, Jr.
|
||||
/s/
Adam Epstein
|
Director
|
December
10, 2010
|
||
Adam
Epstein
|
||||
/s/
Richard L. Hunter
|
Director
|
December
10, 2010
|
||
Richard
L. Hunter
|
||||
/s/
Russell J. Knittel
|
Director
|
December
10, 2010
|
||
Russell
J. Knittel
|
28
Exhibit
Index
Exhibit
No.
|
Description
|
|
2.1
|
Agreement
and Plan of Merger dated December 17, 2004 of OCZ Technology Group,
Inc., an Indiana corporation, with and into OCZ Technology Group, Inc., a
Delaware corporation. (1)
|
|
2.2
|
Asset
Purchase Agreement dated May 25, 2007 by and among OCZ Technology
Group, Inc., PC Power and Cooling, Inc. and Douglas Dodson. (1)
|
|
2.3
|
Asset
Purchase Agreement dated October 25, 2007 by and among OCZ Technology
Group, Inc., Silicon Data Inc., a New York corporation, Fred Cohen, and
Eyal Akler. (1)
|
|
3.1
|
Fourth
Amended and Restated Certificate of Incorporation as filed with the
Delaware Secretary of State on September 30, 2009. (1)
|
|
3.2
|
Fourth
Amended and Restated Bylaws. (1)
|
|
3.3
|
Certificate
of Designation as filed with the Delaware Secretary of State on November
4, 2009. (4)
|
|
4.1
|
Specimen
common stock certificate of OCZ Technology Group, Inc. (1)
|
|
5.1
|
Opinion
of Mayer Brown LLP. (12)
|
|
10.1
|
OCZ
Technology Group, Inc. 2004 Stock Incentive Plan. (1)
|
|
10.2
|
Executive
Employment Agreement dated April 4, 2006 by and between OCZ
Technology Group, Inc. and Ryan M. Petersen. (1)
|
|
10.3
|
Executive
Employment Agreement dated April 4, 2006 by and between OCZ
Technology Group, Inc. and Arthur Knapp. (1)
|
|
10.4
|
Executive
Employment Agreement dated April 4, 2006 by and between OCZ
Technology Group, Inc. and Alex Mei. (1)
|
|
10.5
|
Executive
Employment Agreement dated December 17, 2008 by and between OCZ
Technology Group, Inc. and Kerry Smith. (1)
|
|
10.6
|
Offer
Letter dated June 13, 2006 memorializing the terms of Mr. George
Kynoch’s services as a non-executive director. (1)
|
|
10.7
|
Offer
Letter dated June 13, 2006 memorializing the terms of
Mr. Quentin Colin Maxwell Solt’s services as a non-executive
director. (1)
|
|
10.8
|
Sub-Sublease
dated January 30, 2009 by and between Oracle USA, Inc. and OCZ
Technology Group, Inc. for the property located in San Jose, California,
USA. (1)
|
|
10.9
|
Lease
dated April 21, 2005 by and between Buckgolf Inc., & Greengolf
Inc. and OCZ Technology Group, Inc. dated for the property located in
Markham, Ontario, Canada. (1)
|
|
10.10
|
English
translation of lease dated August 7, 2005 by and between Vrodest
Delft C.V. and OCZ Technology Group, Inc. for the property located in
Delft, The Netherlands. (1)
|
|
10.11
|
English
summary of lease for the property located in Taipei County, Taiwan. (1)
|
29
10.12
|
English summary of lease for the
property located in Lujhu Township, Taiwan. (1)
|
|
10.13
|
Form
of Indemnification Agreement for Directors and Officers of OCZ Technology
Group, Inc. (1)
|
|
10.14
|
Executive
Employment Agreement dated November 30, 2007 by and between OCZ
Technology Group, Inc. and Justin Shong. (1)
|
|
10.15
|
Loan
and Security Agreement dated July 2009 by and between OCZ Technology
Group, Inc. and Silicon Valley Bank. (1)
|
|
10.16
|
Sale
of Accounts and Security Agreement by and between OCZ Technology Group,
Inc. and Faunus Group International, Inc. dated July 6, 2009. (1)
|
|
10.17
|
Asset
Purchase Agreement dated August 31, 2009 by and between OCZ
Technology Group, Inc. and BCInet, Inc. (1)
|
|
10.18
|
Secured
Promissory Note, dated August 31, 2009, issued by BCInet, Inc. to OCZ
Technology Group, Inc. in the amount of $311,215. (1)
|
|
10.19
|
Secured
Promissory Note, dated August 31, 2009, issued by BCInet, Inc. to OCZ
Technology Group, Inc. in the amount of $170,000. (1)
|
|
10.20
|
Secured
Convertible Promissory Note, dated August 31, 2009, issued by BCInet,
Inc. to OCZ Technology Group, Inc. in the amount of $414,200. (1)
|
|
10.21
|
Series A
Preferred Stock Purchase Agreement dated August 31, 2009 by and
between BCInet, Inc. and OCZ Technology Group, Inc. (1)
|
|
10.22
|
Security
Agreement dated August 31, 2009 by and between BCI net, Inc. and OCZ
Technology Group, Inc. (2)
|
|
10.23
|
Confidential
Resignation and Consulting Agreement and General Release dated March 12,
2009 by and between OCZ Technology Group, Inc. and Arthur Knapp. (3)
|
|
10.24
|
Promissory
Note dated August 19, 2009 from OCZ Technology Group, Inc. to The Ryan
Petersen and Sarita Nuez Family Trust. (3)
|
|
10.25
|
Distribution
Agreement dated June 2009, by and between OCZ Technology Group, Inc. and
Bell Microproducts Canada. (5)
|
|
10.26
|
Securities
Purchase Agreement dated March 23, 2010 by and among OCZ Technology Group,
Inc. and the institutional and accredited investors listed therein (6)
|
|
10.27
|
Registration
Rights Agreement dated March 23, 2010 by and among OCZ Technology Group,
Inc. and the Purchasers (as defined therein). (6)
|
|
10.28
|
Form
of Warrant for the institutional and accredited investors. (6)
|
|
10.29
|
Form
of Warrant for Placement Agent (as defined therein). (6)
|
|
10.30
|
Second
Amendment to the Loan and Security Agreement dated May 10, 2010 by and
between OCZ Technology Group, Inc. and Silicon Valley Bank. (8)
|
|
10.31
|
Offer
Letter dated December 30, 2009 memorializing the terms of Mr. Adam
Epstein’s services as a non-executive director. (9)
|
30
10.32
|
Offer
Letter dated December 30, 2009 memorializing the terms of Mr. Richard
L. Hunter’s services as a non-executive director. (9)
|
|
10.33
|
Offer
Letter dated December 30, 2009 memorializing the terms of Mr. Sunit
Saxena’s services as a non-executive director. (9)
|
|
10.34
|
Lease
Extension Agreement dated May 21, 2010 by and between Buckgolf Inc., &
Greengolf Inc. and OCZ Canada, Inc. for the property located in Markham,
Ontario, Canada. (9)
|
|
10.35
|
Lease
Accommodation Agreement dated May 31, 2010 by and between OCZ Technology
Group, Inc. and Beleggingsmaatschappij Marcel B.V. for the property
located in Waddinxveen, The Netherlands. (10)
|
|
16.1
|
Letter
regarding change in certifying accountants dated April 5, 2010 from
Horwath Clark Whitehill (now Crowe Clark Whitehill). (7)
|
|
21.1
|
Subsidiaries
of OCZ Technology Group, Inc. (1)
|
|
23.1
|
Consent
of Independent Registered Public Accounting Firm – Crowe Horwath, LLP.
(12)
|
|
23.2
|
Consent
of Independent Registered Public Accounting Firm – Crowe Clark Whitehill,
LLP. (12)
|
|
23.3
|
Consent of Mayer Brown LLP (included in Exhibit 5.1) | |
24.1
|
Power of Attorney (included on signature page) |
|
(1)
|
Incorporated
by reference to exhibit of the same number to the Registrant’s Form 10
filed on September 30, 2009.
|
|
(2)
|
Incorporated
by reference to exhibit of the same number to the Registrant’s Form 10
filed on November 12, 2009.
|
|
(3)
|
Incorporated
by reference to exhibit of the same number to the Registrant’s Form 10
filed on December 4, 2009.
|
|
(4)
|
Incorporated
by reference to Exhibit 3.1 to the Registrant’s Form 10-Q filed on January
14, 2010.
|
|
(5)
|
Incorporated
by reference to Exhibit 99.2 to the Registrant’s Form 8-K filed on January
25, 2010.
|
|
(6)
|
Incorporated
by reference Registrant’s Form 8-K filed on March 26,
2010.
|
|
(7)
|
Incorporated
by reference to Exhibit 16.1 to the Registrant’s Form 8-K filed on April
8, 2010.
|
|
(8)
|
Incorporated
by reference to Exhibit 99.1 to the Registrant’s Form 8-K filed on May 11,
2010.
|
|
(9)
|
Incorporated
by reference to exhibit of the same number to the Registrant’s Form 10-K
filed on May 20, 2010.
|
|
(10)
|
Incorporated
by reference to Exhibit 99.1 to the Registrant's Form 8-K filed on May 27,
2010.
|
|
(11)
|
Incorporated
by reference to Exhibits 10.1 and 10.2, respectively, to the Registrant's
Form 8-K filed on June 3, 2010.
|
|
(12)
|
Filed
herewith.
|
31