SCHEDULE
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14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a)
of
the Securities Exchange Act of 1934
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by
the Registrant x
Filed
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a Party other than the Registrant o
Check
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Proxy Statement
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o Confidential,
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o Definitive
Proxy Statement
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o Definitive
Additional Materials
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x Soliciting
Material Under Rule 14a-12
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Neonode
Inc.
(Name
of
Registrant as Specified In Its Charter)
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of
Person(s) Filing Proxy Statement, if Other than the Registrant)
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Title
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Stock,
par value $0.001 per share, of the Registrant (the “Common
Stock”).
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(2)
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Aggregate
number of securities to which transaction
applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant
to
Exchange Act Rule 0-11:
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(4)
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Proposed
maximum aggregate value of
transaction:
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NEONODE
Inc.
[_____________],
2007
Dear
Stockholder:
You
are
cordially invited to attend the Special Meeting of Stockholders of Neonode
Inc.
(the “Company”) to be held on December 18, 2007 at the offices of Davenport
Executive Search, located at 12770 High Bluff Drive, Suite 320
San
Diego, CA 92130. The meeting will begin promptly at 9:00 a.m. local
time.
At
the
Special Meeting, in addition to the election of directors and ratification
of
the selection of auditors, you will be asked to consider and vote upon a number
of important matters that relate to our recently completed financing (the
“September 2007 Financing”).
The
items
of business to be considered at the special meeting are listed in the following
Notice of Special Meeting and are more fully addressed in the proxy statement
included with this letter. The items you will be asked to approve at the special
meeting relate to, (i) an increase in the number of shares authorized for
issuance under our Amended and Restated Certificate of Incorporation from
40,000,000 to 75,000,000, (ii) the election of directors, (iii) ratification
of
the terms of the September 2007 Financing, including without limitation the
anti-dilution provisions, (iv) the approval of the convertibility of August
2007
Notes (as described below), and (v) the approval of Ohrlings
PricewaterhouseCoopers AB as the new auditors for the company’s financial
statements.
As
discussed in the Proxy Statement, the failure of stockholders to ratify the
September 2007 Financing or approve convertibility of the August 2007 Notes
could make future financings more complicated and, in some circumstances
constitute an event of default under the September 2007 Financing or adversely
affect Neonode’s listing on the NASDAQ Stock Market.
The
Company’s Board of Directors believes that a favorable vote for the matters
described in the attached Notice of Special Meeting and Proxy Statement is
in
the best interest of the Company and its stockholders and recommends a vote
“FOR” such matters. Accordingly, we urge you to review the accompanying material
carefully and to return the enclosed proxy promptly.
Whether
or not you plan to attend the special meeting in person, it is important that
your shares be represented and voted at the meeting.
Please
date, sign, and return your proxy card promptly in the enclosed envelope to
ensure that your shares will be represented and voted at the special meeting,
even if you cannot attend. If you attend the special meeting and are the
stockholder of record, you may vote your shares in person even though you have
previously signed and returned your proxy.
On
behalf
of your board of directors, thank you for your investment in and continued
support of Neonode Inc.
Sincerely,
Mikael
Hagman
President
and Chief Executive Officer
NEONODE
INC.
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
To
Be Held On December 18, 2007
To
the
Stockholders of Neonode Inc.:
You
are
cordially invited to attend the Special Meeting of Stockholders of Neonode
Inc,
a Delaware corporation
(the “Company”). The special meeting will be held at the offices of Davenport
Executive Search located at 12770 High Bluff Drive, Suite 320, San Diego, CA
92130. The meeting will begin promptly at 9:00 a.m. local time.
(1) To
consider and vote upon the approval of a restated and amended Certificate of
Incorporation to incorporate previous amendments and to effect an increase
in
the number of authorized shares from 40,000,000 to 75,000,000;
(2) To
elect
two directors to hold office until the 2010 Annual Meeting of
Stockholders;
(3) To
ratify
the terms of the financing transaction (the “September 2007 Financing”),
pursuant to which the Company issued units (the “September 2007 Units”),
consisting of its common stock, convertible notes and warrants, issued warrants
to purchase such units to its financial advisor and received gross proceeds
of
$6,169,900 (including conversion of $454,900 principal amount and interest
on
August 2007 Notes), including certain anti-dilution provisions applicable to
such common stock, convertible notes and warrants;
(4) To
approve the convertibility into September 2007 Units of outstanding 8% Senior
Secured Notes of the Company (the “August 2007 Notes”), including the remaining
$3,550,000 principal amount (assuming exercise of an option), interest and
possible other charges, the issuance of warrants to holders of the August 2007
Notes and certain anti-dilution provisions applicable to such
warrants;
(5) To
ratify
the selection of Ohrlings PricewaterhouseCoopers AB as our independent auditors
for the 2007 fiscal year; and
(6) To
transact such other business as may properly come before the special meeting
or
any adjournment thereof.
These
items of business are more fully described in the Proxy Statement accompanying
this Notice.
The
record date for the special meeting is November 6, 2007. Only stockholders
of
record at the close of business on that date may vote at the meeting or any
adjournment thereof.
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By
Order of the Board of Directors,
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/s/
David Brunton
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David
Brunton
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Secretary
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San
Ramon, California
[________],
2007
YOU
ARE CORDIALLY INVITED TO ATTEND THE SPECIAL MEETING IN PERSON. WHETHER OR NOT
YOU EXPECT TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, SIGN AND DATE THE
ENCLOSED PROXY AND RETURN IT PROMPTLY IN THE ENCLOSED ENVELOPE, WHICH DOES
NOT
REQUIRE ANY POSTAGE IF MAILED IN THE UNITED STATES, IN ORDER TO ENSURE YOUR
REPRESENTATION AT THE SPECIAL MEETING. EVEN IF YOU HAVE VOTED BY PROXY, YOU
MAY
STILL VOTE IN PERSON IF YOU ATTEND THE MEETING. PLEASE NOTE, HOWEVER, THAT
IF
YOUR SHARES ARE HELD OF RECORD BY A BROKER, BANK OR OTHER NOMINEE AND YOU WISH
TO VOTE AT THE MEETING, YOU MUST OBTAIN A PROXY ISSUED IN YOUR NAME FROM THAT
RECORD HOLDER IN ORDER TO VOTE IN PERSON.
NEONODE
INC.
PROXY
STATEMENT
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EXHIBIT
A: Amended and Restated Certificate of Incorporation
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Except
as
otherwise specifically noted, “Neonode,” “New Neonode,” “we,” “our,” “us” and
similar words in this proxy statement refer to Neonode Inc., formerly known
as
SBE, Inc. and its subsidiaries. References to “Old Neonode” shall mean the
company now known as Cold Winter, Inc. (now a wholly owned subsidiary of Neonode
Inc.), and its wholly-owned subsidiary, Neonode AB.
The
information in this proxy statement contains forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. Statements
that are not historical in nature, including statements about beliefs and
expectations, are forward-looking statements. Words such as “may,” “will,”
“should,” “estimates,” “predicts,” “believes,” “anticipates,” “plans,”
“expects,” “intends” and similar expressions are intended to identify these
forward-looking statements, but are not the exclusive means of identifying
such
statements. Such statements are based on currently available operating,
financial and competitive information and are subject to various risks and
uncertainties. You are cautioned that these forward-looking statements reflect
management’s estimates only as of the date hereof, and we assume no obligation
to update these statements, even if new information becomes available or other
events occur in the future. Actual future results, events and trends may differ
materially from those expressed in or implied by such statements depending
on a
variety of factors, including, but not limited to those set forth in our filings
with the Securities and Exchange Commission, or SEC.
We
are a
reporting company and file annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
reports, proxy statements or other information that we file at the SEC’s public
reference room at 100 F Street N.E., Room 1580, Washington, D.C., 20549. You
can
also request copies of these documents by writing to the SEC and paying a fee
for the copying costs. Please call the SEC at 1-800-SEC-0330 for more
information about the operation of the public reference room. Our public filings
with the SEC are also available on the web site maintained by the SEC
at
http://www.sec.gov.
NEONODE
INC.
4000
Executive Parkway, Suite 200
San
Ramon, California 94583
PROXY
STATEMENT
FOR
THE SPECIAL MEETING OF STOCKHOLDERS
To
Be Held On December 18, 2007
The
Special Meeting of Stockholders of Neonode Inc. will be held on December 18,
2007, at the offices of Davenport Executive Search, located at 12770 High Bluff
Drive, Suite 320, San Diego, CA 92130, beginning promptly at 9:00 a.m.,
local time. The enclosed proxy is solicited by our board of directors. It is
anticipated that this proxy statement and the accompanying proxy card will
be
first mailed to holders of our common stock on or about November [______],
2007.
Why
am I receiving this proxy statement and proxy card?
You
are
receiving a proxy statement and proxy card because you own shares of our common
stock. This proxy statement describes the issues on which we would like you,
as
a stockholder, to vote. It also gives you information on these issues so that
you can make an informed decision.
Who
can vote at the special meeting?
Only
stockholders of record at the close of business on November 6, 2007 will be
entitled to vote at the special meeting. On this record date, there were
[_____]
shares
of common stock outstanding and entitled to vote.
Stockholder
of Record: Shares Registered in Your Name
If
on
November 6, 2007 your shares were registered directly in your name with our
transfer agent, American Stock Transfer & Trust, then you are a stockholder
of record. As a stockholder of record, you may vote in person at the meeting
or
vote by proxy. Whether or not you plan to attend the meeting, we urge you to
fill out and return the enclosed proxy card to ensure your vote is counted.
Beneficial
Owner: Shares Registered in the Name of a Broker or Bank
If
on
November 6, 2007 your shares were held, not in your name, but rather in an
account at a brokerage firm, bank, dealer, or other similar organization, then
you are the beneficial owner of shares held in “street name” and these proxy
materials are being forwarded to you by that organization. The organization
holding your account is considered to be the stockholder of record for purposes
of voting at the special meeting. As a beneficial owner, you have the right
to
direct your broker or other agent on how to vote the shares in your account.
You
are also invited to attend the special meeting. However, since you are not
the
stockholder of record, you may not vote your shares in person at the meeting
unless you request and obtain a valid proxy from your broker or other agent.
What
is being voted on?
You
are
being asked to vote on the following five proposals:
Proposal
1 —
To
consider and vote upon the approval of an amendment of our Certificate of
Incorporation to effect an increase in the number of authorized shares from
40,000,000 to 75,000,000;
Proposal
2 —
To
elect two directors to hold office until the 2010 Annual Meeting of
Stockholders;
Proposal
3 —
To
ratify the terms of the financing transaction (the “September 2007 Financing”),
pursuant to which the Company issued units (the “September 2007 Units”),
consisting of its common stock, convertible notes and warrants, and received
gross proceeds of $6,169,900 (including conversion of $454,900 principal amount
and interest on August 2007 Notes) including certain anti-dilution provisions
applicable to such common stock, convertible notes and warrants;
Proposal
4 - To
approve the convertibility into September 2007 Units of outstanding 8% Senior
Secured Notes of the Company (the “August 2007 Notes”), including the remaining
$3,550,000 principal amount (assuming exercise of an option), interest and
possible other charges, the issuance of warrants to holders of the August 2007
Notes and certain anti-dilution provisions applicable to such September 2007
Units and such warrants; and
Proposal
5 - To
ratify
the selection of Ohrlings PricewaterhouseCoopers AB as our independent auditors
for the 2007 fiscal year.
How
do I vote?
For
each
of the matters to be voted on, you may vote “For” or “Against” or abstain from
voting. The procedures for voting are fairly simple:
Stockholder
of Record: Shares Registered in Your Name
If
you
are a stockholder of record, you may vote in person at the special meeting
or
vote by proxy using the enclosed proxy card. To vote using the proxy card,
simply complete, sign and date the enclosed proxy card and return it promptly
in
the envelope provided. If you return your signed proxy card to us before the
special meeting, we will vote your shares as you direct. Whether or not you
plan
to attend the meeting, we urge you to vote by proxy to ensure your vote is
counted. You may still attend the meeting and vote in person if you have already
voted by proxy. If you would like to vote in person, come to the special meeting
and we will give you a ballot when you arrive.
Beneficial
Owner: Shares Registered in the Name of Broker or Bank
If
you
are a beneficial owner of shares registered in the name of your broker, bank,
or
other agent, you should have received a proxy card and voting instructions
with
these proxy materials from that organization rather than from us. Simply
complete and mail the proxy card to ensure that your vote is counted. To vote
in
person at the special meeting, you must obtain a valid proxy from your broker,
bank, or other agent. Follow the instructions from your broker or bank included
with these proxy materials, or contact your broker or bank to request a proxy
form.
How
many votes do I have?
On
each
matter to be voted upon, you have one vote for each share of common stock you
own as of November 6, 2007.
How
are votes counted?
Votes
will be counted by the inspector of election appointed for the meeting, who
will
separately count “For” and “Against” votes, abstentions and broker non-votes.
Abstentions and broker non-votes will be counted towards the vote total for
Proposals 2 and 5 with the same effect as “For” votes, and will have the same
effect as votes “Against” Proposals 1, 3 and 4.
If
your
shares are held by your broker as your nominee (that is, in “street name”), you
will need to obtain a proxy form from the institution that holds your shares
and
follow the instructions included on that form regarding how to
instruct
your broker to vote your shares. If you do not give instructions to your broker,
the shares will be treated as broker non-votes.
How
many votes are needed to approve each proposal?
To
be
approved, Proposal 1 (the authorized share increase proposal) must receive
a
“For” vote from the holders of a majority of the outstanding shares of our
common stock on the record date, Proposal 2 (the director vote proposal),
Proposal 3 (the September 2007 Financing proposal), Proposal 4 (the August
2007
Note Convertibility Proposal), and Proposal 5 (the auditor proposal) must
receive the affirmative vote of the holders of a majority of the outstanding
shares represented in person or by proxy and entitled to vote at the special
meeting. If you do not vote or abstain from voting on any of these proposals,
it
will have the same effect as an “Against” vote. Broker non-votes will have the
same effect as “Against” votes only for Proposals 1,3,4 and 5. If those present
do not vote, or abstain from voting, it will have the same effect as an
“Against” vote. Broker non-votes will have no effect.
What
is the quorum requirement?
A
quorum
is necessary to hold a valid meeting. A quorum will be present if a majority
of
the outstanding shares are represented in person or by proxy at the special
meeting. On the record date, there were [_____] shares of Neonode common stock
outstanding and entitled to vote. Thus, at least [_____] shares must be
represented in person or by proxy at the special meeting in order to have a
quorum.
Your
shares will be counted towards the quorum only if you submit a valid proxy
(or
one is submitted on your behalf by your broker, bank or other nominee) or if
you
vote in person at the meeting. Abstentions and broker non-votes will be counted
towards the quorum requirement. If there is no quorum, a majority of the votes
present at the special meeting may adjourn the special meeting to another
date.
What
if I return a proxy card but do not make specific
choices?
If
you
return a signed and dated proxy card without marking any voting selections,
your
shares will be treated as broker non-votes and will have the same effect as
“Against” votes.
Who
is paying for this proxy solicitation?
We
will
pay for the entire cost of soliciting proxies. In addition to these mailed
proxy
materials, our directors and employees may also solicit proxies in person,
by
telephone or by other means of communication. Directors and employees will
not
be paid any additional compensation for soliciting proxies. We may also
reimburse brokerage firms, banks and other agents for the cost of forwarding
proxy materials to beneficial owners.
What
does it mean if I receive more than one proxy card?
If
you
receive more than one proxy card, it means that your shares are registered
in
more than one name or are registered in different accounts. Please complete,
sign and return each
proxy
card to ensure that all of your shares are voted.
Can
I change my vote after submitting my proxy?
Yes.
You
can revoke your proxy at any time before the final vote at the meeting. If
you
are the record holder of your shares, you may revoke your proxy in any one
of
three ways:
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You
may submit another properly completed proxy card with a later
date;
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You
may send a written notice that you are revoking your proxy to our
Secretary at 4000 Executive Parkway, Suite 200, San Ramon, California
94583; or
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You
may attend the special meeting and vote in person. However, simply
attending the special meeting will not, by itself, revoke your
proxy.
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If
your
shares are held by your broker or bank as a nominee or agent, you should follow
the instructions provided by your broker or bank.
Does
the board of directors recommend approval of the proposals at the special
meeting?
Yes.
After careful consideration, our board of directors recommends that our
stockholders vote FOR each of the proposals.
Who
can help answer my questions about the proposals?
If
you
have additional questions about these proposals, you should contact David
Brunton, our Chief Financial Officer, at (925) 355-7700.
How
can I find out the results of the voting at the special
meeting?
Preliminary
voting results may be announced at the special meeting. Final voting results
will be published in our quarterly report on Form 10-Q for the quarter in which
the special meeting occurs.
The
following summary, together with the previous question and answer section,
provides an overview of the proposals discussed in this proxy statement and
presented in the attached annexes. The summary also contains cross-references
to
the more detailed discussions elsewhere in the proxy statement. This summary
may
not contain all of the information that is important to you. To understand
the
proposals fully, and for a more complete description of the terms of the each
proposal, you should carefully read this entire proxy statement and the attached
annexes in their entirety.
September
2007 Financing
On
September 26, 2007, we issued in a private offering $6,169,900 of units (the
“September 2007 Units”) of our securities (an aggregate of 2,056.33 September
2007 Units) at a price of $3,000 per September 2007 Unit. The September 2007
Units consist of (i) $3,084,950 of principal amount of floating rate promissory
notes of the Company (the “Note” or “Notes”), sold at par, convertible into
shares of the Company's Common Stock, $0.001 par value (the "Common Stock")
at a conversion price of $3.50 per share (“Conversion Price”);
(ii) 1,432,445 shares of Common Stock (the “Shares”) at a per share purchase
price of $3.00 (the “Share Price”);
and (iii) 876,652 five year warrants (the “Warrants”), exercisable to purchase
shares of Common Stock (the “Warrant Shares”)
at an exercise price of $3.92 per share (“Warrant Price”).
The
Notes, the Warrants and the subscription agreement pursuant to which the
September 2007 Units were issued (the “Subscription Agreement”) provide for
certain protection for the holders of Shares, Notes and Warrants from dilution
resulting from future sales of our securities. The Company is barred from
issuing any securities that would trigger these anti-dilution provisions in
violation of the NASDAQ Marketplace Rules.
In
addition, Empire Asset Management, Inc. (“Empire”) received a fee of 7.5% of the
total amounts raised through the sale of September 2007 Units plus five year
warrants, exercisable to purchase up to 142.875 September 2007 Units (the
“Empire Warrants”) at a price of $3,250 per September 2007
Unit.
The
forms
of the Subscription Agreement, Notes, Warrants and Empire Warrants were filed
as
exhibits to the Company’s Form 8-K, dated October 2, 2007, and are incorporated
herein by reference.
The
Warrants will not be exercisable until March 26, 2008, six months after closing
of the offering. The Warrant Price will be subject to reduction on a ratchet
anti-dilution basis if the Company issues Common Stock below the Warrant Price
prior to March 27, 2009; however, there will be no corresponding increase in
the
number of Warrant Shares.
The
number of shares issuable upon conversion of the Notes shall include additional
shares representing accrued interest or, if the Company redeems the Notes,
the
redemption premium. The Conversion Price will be subject to reduction on a
ratchet anti-dilution basis if the Company issues Common Stock below the
Conversion Price prior to March 27, 2009; and, upon any such reduction, the
Notes will be convertible into a greater number of shares.
The
initial holders of the Shares will also be entitled to ratchet anti-dilution
protection in the event of issuance of Common Stock below $3.00 per share.
All
of the ratchet anti-dilution provisions expire on March 27, 2009.
Conversion
of August 2007 Notes
A
predecessor of the Company, a private company also known as Neonode Inc. (“Old
Neonode”), issued $3,250,000 of 8% convertible notes (the “August 2007 Notes”)
prior to the merger of Old Neonode with a subsidiary of the Company. The August
2007 Notes, as amended, plus accrued interest and certain other charges are
convertible at the option of the holders exercised prior to June 30, 2008,
into
Units. An aggregate of $454,900 of August 2007 Notes (including interest)
converted into Units in the September 2007 Financing.
Simultaneously
with the issuance of the August 2007 Notes, Old Neonode also agreed to sell
up
to $750,000 of additional August 2007 Notes to Ellis International at its
option, expiring December 31, 2007. These August 2007 Notes, if purchased,
plus
accrued interest are also convertible, at the option of the holders exercised
prior to December 31, 2007, into securities substantially similar to the
September 2007 Units. The holders of August 2007 Notes have agreed to amendment
of the August 2007 Notes to defer the convertibility of the August 2007 Notes
in
exchange for three year warrants (the “Note Extension Warrants”) to purchase an
aggregate of 219,074 shares of Common Stock at a price of $3.92 per share.
The
form of Note Extension Warrant was filed as an exhibit to the Company’s Form
8-K, dated October 2, 2007, and is incorporated herein by
reference.
The
holders of Note Extension Warrants are protected from dilution resulting from
future sales of our securities in substantially the same way as the holders
of
securities included in the September 2007 Units. The Company is barred from
issuing any securities that would trigger the anti-dilution provisions in
violation of the NASDAQ Marketplace Rules.
APPROVAL
OF INCREASE IN AUTHORIZED SHARES
We
are
requesting stockholder approval to increase the authorized number of shares
of
our common stock from 40,000,000 shares to 75,000,000 shares. The additional
common stock to be authorized by adoption of this proposal would have rights
identical to our currently outstanding common stock. Adoption of the proposed
amendment and issuance of the common stock would not affect the rights of the
holders of our currently outstanding common stock, except for effects incidental
to possible future increases in the number of shares of our common stock
outstanding, such as dilution of the earnings per share and voting rights of
our
current holders of common stock. If the amendment is adopted, it will become
effective upon filing of the amended and restated certificate of incorporation
with the Secretary of State of the State of Delaware.
As
of
November [ ], 2007, we had outstanding [ ] shares, as well as options and
warrants, which if exercised, would result in the issuance of an additional
[ ]
shares. Accordingly, on a fully diluted basis, that is, assuming exercise of
all
outstanding warrants and options and conversion of the Notes and August 2007
Notes, we have __ shares outstanding. Without the proposed increase, we will
likely have insufficient authorized shares of common stock to issue in
connection with expected future financings.
The
additional shares of common stock that would become available for issuance
if
the proposal is adopted could also be used by us to oppose a hostile takeover
attempt or to delay or prevent changes in control or management of Neonode.
For
example, without further stockholder approval, our board of directors could
strategically sell shares of common stock in a private transaction to purchasers
who would oppose a takeover or favor the incumbent board of directors. Although
this proposal to increase the authorized common stock has been prompted by
business and financial considerations and not by the threat of any hostile
takeover attempt (nor is our board of directors currently aware of any such
attempts directed at us), nevertheless, stockholders should be aware that
approval of proposal could facilitate our future efforts to deter or prevent
changes in control of Neonode, including transactions in which the stockholders
might otherwise receive a premium for their shares over then current market
prices.
In
order
to incorporate previous amendments to our certificate of incorporation, we
request that you approve an amended and restated Certificate of Incorporation
in
the form attached hereto as Exhibit A and adopt the following
resolutions:
“RESOLVED,
that the Certificate of Incorporation of this Corporation (the “Certificate”)
be, and it hereby is, amended to increase the number of authorized shares of
the
Corporation’s common stock (the “Common Stock”) from forty million to
seventy-five million; and further
RESOLVED,
that the Certificate be, and it hereby is, amended and restated so as to be
and
read in its entirety as set forth in the form attached hereto as Exhibit
A,
which
Certificate the officers of the Corporation are hereby authorized to file with
the Secretary of the State of Delaware.”
The
adoption of Proposal 1 will require the affirmative vote of the holders of
a
majority of the outstanding shares of our common stock on the record date.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE
IN
FAVOR OF PROPOSAL 1.
ELECTION
OF DIRECTORS
The
Board
currently has five members. There are two directors whose terms of office expire
in 2007. If elected at the annual meeting, these nominees would serve until
the
2010 annual meeting and until their successors are elected and have qualified,
or until their earlier death, resignation or removal. All of the directors
were
directors of Neonode Inc. (“Old Neonode”), which merged into a subsidiary of the
Company on August 10, 2007. With the exception of John Reardon, all of the
directors became directors of the Company on August 10, 2007.
The
following is a brief biography of each nominee and each director whose term
will
continue after the annual meeting.
NOMINEES
FOR ELECTION FOR A THREE-YEAR TERM EXPIRING AT THE 2010 ANNUAL
MEETING
John
Reardon - Mr.
Reardon, age 48, has served as a director of the Company since February 2004
and
of Old Neonode since February 2007. Mr. Reardon is the chairman of the Audit
Committee and member of the Compensation and Nominating and Governance
Committees of the Company. Mr. Reardon has served as President and member of
the
board of directors of The RTC Group, a technical publishing company since 1990.
In 1994, Mr. Reardon founded a Dutch corporation, AEE, to expand the activities
of The RTC Group into Europe. Mr. Reardon also serves on the board of directors
of One Stop Systems, Inc., a computing systems and manufacturing company.
Mikael
Hagman - Mr.
Hagman, age 39, joined Old Neonode as Chief Executive Officer in March 2007
from
Sony where he served as Chief Executive Officer for Sony Corp. in Sweden and
Finland. During his eight years with Sony, Mr. Hagman held a number of positions
and served on the board of Sony Nordic AS. While
at
Sony Mr. Hagman was nominated for several Pan European committees and
participated in forums that developed Sony’s commercial strategies. Prior
to
Sony, Mr.
Hagman worked for United Biscuits Ltd. in various leading sales and marketing
roles. He currently serves on the board of directors of AIK Fotboll AB, a
publicly traded company listed on NGM (Nordic Growth Markets). AIK Fotboll
AB is
one of Sweden’s leading soccer clubs. He
has
served on the board of various industry associations (Consumer Electronics
Association, Elektronik branchen, SRL).
THE
BOARD OF DIRECTORS RECOMMENDS
A
VOTE IN FAVOR OF THE NAMED NOMINEES.
DIRECTORS
CONTINUING IN OFFICE UNTIL THE 2009 ANNUAL MEETING
Per
Bystedt -
Mr.
Bystedt, age 42, served as the interim CEO of Old Neonode from October 2005
through July 2006. Since 1997, Mr. Bystedt has been the CEO of Spray AB, an
internet investment company. From 1991 through 1997, Mr. Bystedt was the CEO
of
various television production and network companies including Trash Television,
ZTV AB, TV3 Broadcasting Group Ltd and MTG AB. From 1998 through the present,
Mr. Bystedt has served as a member of the board of directors of Axel Johnson
AB.
From 2000 to the present, he has been a member of the board of directors of
Eniro AB and, from 2005 to the present, has been a member of the board of
directors of Servera AB. From 2004 to the present, Mr. Bystedt has been the
chairman of the board of directors of AIK Fotboll AB. From 1997 through 2005
he
served as a member of the board of directors of Ahlens AB, and from 1998 through
2000 he was the chairman of the board of directors of Razorfish, Inc.
Susan
Major - Ms.
Major, age 55, is the co-founder and Managing Partner of DavenportMajor
Executive Search. Ms. Major is Chairman of the Compensation Committee and a
member of the Audit and Nominating and Governance Committees. Her expertise
working in the Technology industry spans more than 18 years with global high
growth companies coupled with 10 additional years of search experience,
including C-level executive
placements
for public and emerging, pre-IPO corporations. Ms. Major specializes in the
wireless, telecom, software and semiconductor sectors and serves Fortune 500
companies like Motorola and Qualcomm. While at Motorola, Ms. Major introduced
numerous technology products, including two-way radios, cellular handsets and
a
first generation PDA. At Ameritech, she led the marketing efforts that expanded
their paging and wireless data services. Additionally, she has been awarded
two
patents in wireless messaging.
DIRECTORS
CONTINUING IN OFFICE UNTIL THE 2008 ANNUAL MEETING
Johan
Ihrfelt - Mr.
Ihrfelt, age 40, is currently the President and co-founder of O2 Energi, a
renewable energy group in Sweden, designing, building and operating wind power
plants, which is also a reseller of environmentally friendly electricity. Mr.
Ihrfelt is Chairman of the Nominating and Governance Committee and a member
of
the Audit and Compensation Committees. Mr. Ihrfelt was one of the founders
of
Spray, a pioneer in internet service and portals. He served first as President
of the parent company of Spray, and then as the CEO of the Spray portal group
of
companies with operations in eight countries. After the acquisition of Spray’s
portal business by the German and American owned Lycos Europe, Mr. Ihrfelt
and
three other partners continued with Spray, developing its other operations.
Other positions held by Mr. Ihrfelt include Vice President of Razorfish Inc.,
and Vice President of Lycos Europe NV, listed on the Frankfurt Stock Exchange.
Mr. Ihrfelt also serves as a board member of Agent 25 Group AB, Yogayama AB
and
Fjord Network AB.
INFORMATION
REGARDING THE BOARD OF DIRECTORS AND ITS COMMITTEES
Independence
of the Board of Directors
As
required under the NASDAQ Stock Market ("NASDAQ") listing standards, a majority
of the members of a listed company's board of directors must qualify as
"independent," as affirmatively determined by the board of directors. The Board
consults with the Company's counsel to ensure that the Board's determinations
are consistent with all relevant securities and other laws and regulations
regarding the definition of "independent," including those set forth in
pertinent listing standards of NASDAQ, as in effect time to time.
Consistent
with these considerations, after review of all relevant transactions or
relationships between each director, or any of his or her family members, and
the Company, its senior management and its independent auditors, the Board
affirmatively has determined that all of the Company's directors, other than
Mikael Hagman and Per Bystedt, are independent directors within the meaning
of
the applicable NASDAQ listing standards.
Board
Committees
The
Board
has three committees: an Audit Committee, a Compensation Committee, and a
Nominating and Governance Committee. John Reardon, Susan Major and John Ihrfelt
constitute the members of each committee. During the Company’s 2006 fiscal year
(which ended on October 31, 2006), the Audit Committee met six times, the
Compensation Committee met five times and the Nominating and Governance
Committee did not meet. All then-serving directors attended at least 75% of
the
meetings of each committee. With the exception of John Reardon, none of the
current directors were members of any of the committees in the Company’s 2006
fiscal year.
Below
is
a description of each committee of the Board. Each of the committees has
authority to engage legal counsel or other experts or consultants, as it deems
appropriate to carry out its responsibilities. The Board has determined that
each member of each committee meets the applicable rules and regulations
regarding "independence" and that each member is free of any relationship that
would interfere with his or her individual exercise of independent judgment
with
regard to the Company.
Audit
Committee.
John
Reardon is Chairman of the Audit Committee. The Audit Committee of the Board
oversees the Company's corporate accounting and financial reporting process.
For
this purpose, the Audit Committee performs several functions. The Audit
Committee evaluates the performance of and assesses the qualifications of the
independent auditors; determines and approves the engagement of the independent
auditors; determines whether to retain or terminate the existing independent
auditors or to appoint and engage new independent auditors;
reviews
and
approves the retention of the independent auditors to perform any proposed
permissible non-audit services; monitors the rotation of partners of the
independent auditors on the Company's audit engagement team as required by
law;
confers with management and the independent auditors regarding the effectiveness
of internal controls over financial reporting; establishes procedures, as
required under applicable law, for the receipt, retention and treatment of
complaints received by the Company regarding accounting, internal accounting
controls or auditing matters and the confidential and anonymous submission
by
employees of concerns regarding questionable accounting or auditing matters;
reviews the financial statements to be included in the Company's Annual Report
on Form 10-K; and discusses with management and the independent auditors the
results of the annual audit and the results of the Company's quarterly financial
statements. The Board has adopted a written Audit Committee Charter that is
available on the Company's website at
http://www.neonode.com/upload/investors/audit_committee_charter.pdf.
The
Board
annually reviews the NASDAQ listing standards definition of independence for
Audit Committee members and has determined that all members of the Company's
Audit Committee are independent (as independence is currently defined in Rule
4350(d)(2)(A)(i) and (ii) of the NASDAQ listing standards). All members of
the
Audit Committee meet NASDAQ's audit committee financial sophistication
requirements. The Company does not have an "audit committee financial expert"
(as defined in the rules of the Securities and Exchange Commission (the "SEC"))
serving on the Audit Committee, but the Board believes that the background
and
financial sophistication of its members are sufficient to fulfill the duties
of
the Audit Committee. NASDAQ does not currently require that audit committees
include an "audit committee financial expert."
Compensation
Committee.
Susan
Major is Chairman of the Compensation Committee. The Compensation Committee
of
the Board reviews and approves the overall compensation strategy and policies
for the Company. The Compensation Committee reviews and approves corporate
performance goals and objectives relevant to the compensation of the Company's
executive officers and other senior management; reviews and approves the
compensation and other terms of employment of the Company's Chief Executive
Officer; reviews and approves the compensation and other terms of employment
of
the other executive officers; and administers the Company's stock option and
purchase plans, pension and profit sharing plans, stock bonus plans, deferred
compensation plans and other similar programs. All members of the Company's
Compensation Committee are independent (as independence is currently defined
in
Rule 4200(a)(15) of the NASDAQ listing standards). The Board has adopted a
written Compensation Committee Charter that is available on the Company's
website at http://www.neonode.com/upload/investors/compensation_committee_charter.pdf.
Nominating
and Governance Committee.
Johan
Ihrfelt is Chairman of the Nominating and Governance Committee. The Nominating
and Governance Committee of the Board is responsible for identifying, reviewing
and evaluating candidates to serve as directors of the Company (consistent
with
criteria approved by the Board), reviewing and evaluating incumbent directors,
recommending to the Board for selection candidates for election to the Board
and
making recommendations to the Board regarding the membership of the committees
of the Board. All members of the Nominating and Governance Committee are
independent (as independence is currently defined in Rule 4200(a)(15) of the
NASDAQ listing standards). The Board has adopted a written Nominating and
Governance Committee Charter that is available on the Company's website
at
http://www.neonode.com/upload/investors/nominating_and_governance_committee_charter.pdf.
The
Nominating and Governance Committee believes that candidates for director should
have certain minimum qualifications, including being able to read and understand
basic financial statements, being over 21 years of age and having the highest
personal integrity and ethics. The Nominating and Governance Committee also
intends to consider such factors as possessing relevant expertise upon which
to
be able to offer advice and guidance to management, having sufficient time
to
devote to the affairs of the Company, demonstrated excellence in his or her
field, having the ability to exercise sound business judgment and having the
commitment to rigorously represent the long-term interests of the Company's
stockholders. However, the Nominating and Governance Committee retains the
right
to modify these qualifications from time to time. Candidates for director
nominees are reviewed in the context of the current composition of the Board,
the operating requirements of the Company and the long-term interests of
stockholders. In conducting this assessment, the committee considers diversity,
age, skills, and such other factors as it deems appropriate given the current
needs of the Board and the Company, to maintain a balance of knowledge,
experience and capability. In the case of incumbent directors whose terms of
office are set to expire, the Nominating and Governance Committee reviews such
directors' overall service to the Company during their term, including the
number of meetings attended, level of participation, quality of performance,
and
any other
relationships
and transactions that might impair such directors' independence. In the case
of
new director candidates, the Nominating and Governance Committee also determines
whether the nominee must be independent for NASDAQ purposes, which determination
is based upon applicable NASDAQ listing standards, applicable SEC rules and
regulations and the advice of counsel, if necessary. The Nominating and
Governance Committee then uses its network of contacts to compile a list of
potential candidates, but may also engage, if it deems appropriate, a
professional search firm. The Nominating and Governance Committee conducts
any
appropriate and necessary inquiries into the backgrounds and qualifications
of
possible candidates after considering the function and needs of the Board.
The
Nominating and Governance Committee meets to discuss and consider such
candidates' qualifications and then selects a nominee for recommendation to
the
Board by majority vote. To date, the Nominating and Governance Committee has
not
paid a fee to any third party to assist in the process of identifying or
evaluating director candidates. To date, the Nominating and Governance Committee
has not received any director nominations from stockholders of the
Company.
The
Nominating and Governance Committee will consider director candidates
recommended by stockholders. The Nominating and Governance Committee does not
intend to alter the manner in which it evaluates candidates, including the
minimum criteria set forth above, based on whether the candidate was recommended
by a stockholder or not. Stockholders who wish to recommend individuals for
consideration by the Nominating and Governance Committee to become nominees
for
election to the Board may do so by delivering a written recommendation to the
Nominating and Governance Committee at the following address: Neonode, Inc.,
4000 Executive Parkway, Suite 200, San Ramon, California 94583, at least six
months prior to any meeting at which directors are to be elected. Submissions
must include the full name of the proposed nominee, a description of the
proposed nominee's business experience for at least the previous five years,
complete biographical information, a description of the proposed nominee's
qualifications as a director and a representation that the nominating
stockholder is a beneficial or record owner of the Company's stock. Any such
submission must be accompanied by the written consent of the proposed nominee
to
be named as a nominee and to serve as a director if elected.
Meetings
of the Board of Directors
The
Board
met 13 times during the Company’s 2006 fiscal year. Each then-serving director
attended 75% or more of the aggregate of the meetings of the Board and of the
committees on which he served, held during the period for which he was a
director or committee member, respectively. In addition, as required under
NASDAQ listing standards, the Company's independent directors meet in regularly
scheduled executive sessions at which only independent directors are
present.
Stockholder
Communications with the Board of Directors
The
Company adopted a policy for stockholder communications with the Board. Persons
interested in communicating with any particular director, the independent
directors or the Board as a whole may address correspondence to the intended
recipient, in care of Neonode Inc. at 4000 Executive Parkway, Suite 200, San
Ramon, California 94538. If no particular director is named, letters will be
forwarded, depending on the subject matter, to the Chair of the Audit,
Compensation, or Nominating and Governance Committee.
CODE
OF
ETHICS
The
Company adopted the Neonode Inc. Code of Business Conduct that applies to all
officers, directors and employees. All of the Company's employees must carry
out
their duties in accordance with the policies set forth in the Code of Business
Conduct and with applicable laws and regulations. The Code of Business Conduct
contains a separate Code of Ethics that applies specifically to the Company's
Chief Executive Officer and senior financial officers. The Code of Business
Conduct and Code of Ethics is available on our website at http://www.neonode.com/upload/investors/business_code_of_conduct.pdf.
If the
Company makes any substantive amendments to the Code of Business Conduct or
grants any waiver from a provision of the Code to any executive officer or
director, the Company will promptly disclose the nature of the amendment or
waiver on its website.
REPORT
OF
THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS(1)
The
Audit
Committee reviewed and discussed the audited financial statements of the Company
for the year
ended
October 31, 2006 and the audited financial statements of Old Neonode for the
year ended December 31, 2006. The Audit Committee also discussed the audited
financial statements with management, BDO Seidman & Co LLP (the Company’s
former independent auditors) and Ohrlings PricewaterhouseCoopers AB, the
Company's independent auditors.
The
Audit
Committee discussed with Ohrlings PricewaterhouseCoopers AB the matters required
to be discussed by Statements on Auditing Standards No. 61. The Audit Committee
also discussed with Ohrlings PricewaterhouseCoopers AB the auditor's
independence from the Company and its management, including the matters in
the
written disclosures required by the Independence Standards Board Standard No.
1
(Independence Discussions with Audit Committees). The Audit Committee also
received the letter from Ohrlings PricewaterhouseCoopers AB required by the
Independence Standards Board Standard No. 1.
Based
on
the foregoing review and discussions with management and Ohrlings
PricewaterhouseCoopers AB, the Audit Committee recommended to the Board, and
the
Board approved, the inclusion of the audited financial statements in the
Company's Annual Report on Form 10-K for the year ended October 31, 2006, which
has been filed with the SEC. The Audit Committee and the Board have recommended,
subject to stockholder approval, the selection of Ohrlings
PricewaterhouseCoopers AB as the Company's independent auditors for the year
ending December 31, 2007.
EXECUTIVE
OFFICERS
Upon
the
completion of the merger, we expect our executive officers who are not also
directors to be as follows:
|
NAME
|
|
AGE
|
|
POSITION
|
|
Mikael
Hagman
|
|
39
|
|
President
and Chief Executive Officer
|
|
David
Brunton
|
|
57
|
|
Vice
President, Finance, Chief Financial Officer, Secretary and
Treasurer
|
|
Tommy
Hallberg
|
|
38
|
|
Vice
President of Operations
|
| Thomas
Eriksson |
|
37
|
|
Vice
President and Chief Technology Officer |
Mikael
Hagman - Mr.
Hagman joined Neonode as Chief Executive Officer in March 2007 from Sony where
he served as Chief Executive Officer for Sony Corp. in Sweden and Finland.
During his eight years with Sony, Mr. Hagman held a number of positions and
served on the board of Sony Nordic AS. While
at
Sony Mr. Hagman was nominated for several Pan European committees and
participated in forums that developed Sony’s commercial strategies. Prior
to
Sony Mr.
Hagman worked for United Biscuits Ltd in various leading sales and marketing
roles across Nordic. He currently serves on the board of directors of AIK
Fotboll AB, a publicly traded company listed on NGM (Nordic Growth Markets).
AIK
Fotboll AB is one of Sweden’s leading soccer clubs. He
has
served on the board of various industry associations (Consumer Electronics
Association, Elektronik branchen, SRL).
David
W Brunton
-- Mr.
Brunton joined SBE in November 2001 as Vice President, Finance, Chief Financial
Officer, Secretary and Treasurer. From 2000 to 2001 he was the Chief Financial
Officer for NetStream, Inc., a telephony broadband network service provider.
Mr.
Brunton is a certified public accountant.
Tommy
Hallberg - Mr.
Hallberg joined Neonode in 2005 as an Executive Vice President and is currently
the Vice President of Operations of Neonode Inc. and the President of Neonode
AB, the Company’s Swedish subsidiary operating unit. Prior to Neonode, from 2000
through 2005, he was the CEO of Cybernetics Solutions Nordic AB, a provider
of
solutions to reduce the cost of information technology operations.
Thomas
Eriksson - Mr.
Eriksson co-founded Neonode in 2001 as Vice President and Chief Technology
Officer. Prior to founding Neonode AB, he founded several companies with
products ranging from car electronics test systems and tools to GSM/GPRS/GPS
based fleet management systems including M2M applications and wireless modems.
Mr. Eriksson has over 15 years of experience in product design and electronics
engineering.
TRANSACTION
WITH MANAGEMENT
[to
come]
Section
16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section
16(a) of the Securities Exchange Act of 1934 (the “1934 Act”) requires our
directors and executive officers, and persons who own more than ten percent
of a
registered class of our equity securities, to file with the SEC initial reports
of ownership and reports of changes in ownership of our common stock and other
equity securities. Officers, directors and greater than ten percent stockholders
are required by SEC regulation to furnish us with copies of all Section 16(a)
forms they file.
To
our
knowledge, based solely on a review of the copies of such reports furnished
to
us and written representations that no other reports were required, during
the
fiscal year ended October 31, 2006, all Section 16(a) filing requirements
applicable to our officers, directors and greater than ten percent beneficial
owners were complied with.
The
adoption of Proposal 2 will require the affirmative vote of the holders of
a
majority of those voting their shares.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE
IN
FAVOR OF PROPOSAL 2.
THE
ANTI-DILUTION PROVISIONS OF THE SEPTEMBER 2007 FINANCING
On
September 26, 2007, we issued in a private offering $6,169,900 of the September
2007 Units (an aggregate of 2,056.33 September 2007 Units) at a price of $3,000
per September 2007 Unit. The September 2007 Units consist of (i) $3,084,950
of
principal amount of Notes, sold at par, convertible into shares of the Company's
Common Stock, at a conversion price of $3.50 per share (“Conversion Price”);
(ii) 1,432,445 Shares of Common Stock at a per share purchase price of $3.00
(the “Share Price”);
and (iii) 876,652 Warrants, to purchase Warrant Shares
at
an exercise price of $3.92 per share (“Warrant Price”).
The Company also issued to its financial advisor the Empire Warrants,
exercisable to purchase 142.875 additional September 2007 Units at a price
of
$3,250 per September 2007 Unit.
The
Notes, the Warrants, the Subscription Agreement and the Empire Warrants provide
for certain protection to the holders of Shares, Notes and Warrants from
dilution resulting from future sales of our securities.
The
Warrants will not be exercisable until March 26, 2008, six months after closing
of the offering. The Warrant Price will be subject to reduction on a ratchet
anti-dilution basis if the Company issues Common Stock below the Warrant Price
prior to March 27, 2009; however, there will be no corresponding increase in
the
number of shares covered by the Warrants.
The
number of shares issuable upon conversion of the Notes shall include additional
shares representing accrued interest or, if the Company redeems the Notes,
the
redemption premium. The Conversion Price will be subject to reduction on a
ratchet anti-dilution basis if the Company issues Common Stock below the
Conversion Price prior to March 27, 2009; and, upon any such reduction, the
Notes will be convertible into a greater number of shares.
The
initial holders of the Shares will also be entitled to ratchet anti-dilution
protection in the event of issuance of Common Stock below $3.00 per Share.
All
of the ratchet anti-dilution provisions expire 18 months after the closing
of
the offering.
Under
the
Subscription Agreement, the Company is barred from issuing any securities that
would trigger the anti-dilution provisions in violation of the NASDAQ
Marketplace Rules; consequently, the Company is barred from selling its common
stock at a price less than $3.00 per share, its convertible securities
convertible at a price less than the Conversion Price, and its common stock
purchase warrants exercisable at a price less than the Warrant Price. The
Company will require additional financing to fund its anticipated growth and
continuing losses during the period of introduction of its products and may
not
be able to obtain such financing on favorable terms as a result of market
conditions, business results or other concerns. Without
the stockholder approval requested herein, issuance of securities might result
in acceleration of the September 2007 Notes and delisting by the NASDAQ Stock
Market.
If
our
Common Stock is delisted from NASDAQ, trading would thereafter be conducted
in
the over-the-counter market on the OTC Bulletin Board or in the “Pink Sheets.”
As a consequence:
|
·
|
The
liquidity of the Common Stock would be impaired, not only in the
number of
shares that could be bought and sold and the lower prices for them,
but
also through delays in the timing of transactions, reduction in security
analysts’ and the media’s coverage of Neonode and the reluctance of
brokers to recommend, and others to invest, in lower priced
stocks.
|
|
·
|
These
trading factors would also make the Common Stock materially less
attractive to potential sources of financing that Neonode may
require.
|
Under
Proposal 3, the stockholders are asked to ratify and approve the terms of the
September 2007 Financing and Empire Warrants, including the protection for
holders of the securities comprising September 2007
Units
from dilution resulting from future sales of our securities. The adoption of
Proposal 3 will require the affirmative vote of the holders of a majority of
those voting their shares.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE
IN
FAVOR OF PROPOSAL 3.
THE
CONVERSION OF THE AUGUST 2007 NOTES INTO THE SECURITIES ISSUED PURSUANT TO
THE
SEPTEMBER 2007 FINANCING
Old
Neonode, a predecessor of the Company, issued $3,250,000 of August 2007 Notes
prior to the merger of Old Neonode with a subsidiary of the Company. The August
2007 Notes, as amended, plus accrued interest and certain other charges, are
convertible at the option of the holders exercised prior to June 30, 2008,
into
September 2007 Units. An aggregate of $454,900 of August 2007 Notes (including
interest) converted into September 2007 Units in the September 2007
Financing.
Simultaneously
with the issuance of the August 2007 Notes, Old Neonode also agreed to sell
up
to $750,000 of additional August 2007 Notes to Ellis International at its
option, expiring December 31, 2007. These August 2007 Notes, if purchased,
plus
accrued interest are also convertible, at the option of the holders exercised
prior to December 31, 2007, into securities substantially similar to the
September 2007 Units. In order to enable the September 2007 Financing, the
holders of August 2007 Notes agreed to amendment of the August 2007 Notes to
defer the convertibility of the August 2007 Notes in exchange for three year
Note Extension Warrants, exercisable to purchase an aggregate of 219,074 shares
of Common Stock at a price of $3.92 per share.
The
holders of Note Extension Warrants are protected from dilution resulting from
future sales of our securities in substantially the same way as the securities
included in the September 2007 Units. The Company is barred from issuing any
securities that would trigger the anti-dilution provisions in violation of
the
NASDAQ Marketplace Rules.
The
Company will require additional financing to fund its anticipated growth and
continuing losses during the period of introduction of its products.
NASDAQ
Marketplace Rules
Under
the
NASDAQ Marketplace Rules, conversion of the August 2007 Notes into Units prior
to March 26, 2007 would require stockholder approval. In addition, without
such
approval, the September 2007 Units issuable upon conversion of the August 2007
Notes may be included, for purposes of NASDAQ Marketplace Rule 4350, with any
future private sales of securities of the Company in which the potential
issuances of Common Stock would exceed 20% of the outstanding shares of Neonode
at a price that would be less than the greater of book or market value, which
could adversely affect future financing plans, and, without stockholder
approval, could result in delisting by the NASDAQ Stock Market. Accordingly,
stockholder approval of the conversion of the August 2007 Notes will increase
the Company’s ability to obtain additional financing through private placements.
The Company has requested that the stockholders approve the conversion of the
August 2007 Notes and related interest and charges into September 2007
Units.
Failure
to approve the terms of the September Unit Financing and the Conversion of
the
August 2007 Notes into September 2007 Units, and related anti-dilution
provisions, could
adversely affect future financing plans, and could result in delisting by the
NASDAQ Stock Market.
Under
Proposal 4, the stockholders are asked to ratify and approve the convertibility
of the August 2007 Notes into September 2007 Units and the protection from
dilution resulting from future sales of our securities provided to the holders
of the securities comprising such September 2007 Units and the Note Extension
Warrants. The adoption of Proposal 4 will require the affirmative vote of the
holders of a majority of those voting their shares.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE
IN
FAVOR OF PROPOSAL 4.
RATIFICATION
OF SELECTION OF INDEPENDENT AUDITORS
The
Audit
Committee of the Board has selected Ohrlings PricewaterhouseCoopers AB as the
Company's independent auditors for the fiscal year ending December 31, 2007
and
has further directed that management submit the selection of independent
auditors for ratification by the stockholders at the Annual Meeting. Ohrlings
PricewaterhouseCoopers AB has audited Old Neonode's financial statements since
2005. Representatives of Ohrlings PricewaterhouseCoopers AB are expected to
be
present at the Annual Meeting. They will have an opportunity to make a statement
if they so desire and will be available to respond to appropriate
questions.
Neither
the Company's Bylaws nor other governing documents or law require stockholder
ratification of the selection of Ohrlings PricewaterhouseCoopers AB as the
Company's independent auditors. However, the Audit Committee of the Board is
submitting the selection of Ohrlings PricewaterhouseCoopers AB to the
stockholders for ratification as a matter of good corporate practice. If the
stockholders fail to ratify the selection, the Audit Committee of the Board
will
reconsider whether or not to retain that firm. Even if the selection is
ratified, the Audit Committee of the Board in its discretion may direct the
appointment of different independent auditors at any time during the year if
they determine that such a change would be in the best interests of the Company
and its stockholders.
Previous
Independent Accountants
On
August
10, 2007, upon the closing of the merger,
the stockholders of Cold Winter became the majority stockholders of Neonode.
The
merger will be treated as a “reverse acquisition” for accounting purposes and as
such, the historical financial statements of the accounting acquirer,
Cold Winter, become the historical financial statements of Neonode. Because
Cold
Winters’s independent registered public accounting firm, Öhrlings
PricewaterhouseCoopers AB, or PwC, was different from Neonode’s independent
registered public accounting firm, BDO Seidman, LLP, or BDO, there has been
a
change in Neonode’s independent registered public accounting firm as a result of
the merger. However,
BDO completed its review of the Neonode’s interim financial
statements for the period ended July 31, 2007 and for the nine-month period
then
ended and completed its engagement with Neonode upon the filing of Neonode’s
Form 10-Q for the period ended July 31, 2007 with the Securities and Exchange
Commission. Neonode
filed a current report on Form 8-K announcing the termination of the engagement
and the appointment of a new independent registered public accounting
firm.
BDO’s
report on the financial statements of Neonode for each of the past two fiscal
years ended October 31, 2005 and 2006 did not contain any adverse opinion or
disclaimer of opinion and was not qualified as audit scope or accounting
principles.
PRINCIPAL
ACCOUNTANT FEES AND SERVICES
The
following table represents aggregate fees billed to the Company for fiscal
years
ended December 31, 2007 and 2006, by Ohrlings PricewaterhouseCoopers AB, the
Company's principal accountant.
FISCAL
YEAR ENDED
(IN
THOUSANDS)
| |
|
2007
|
|
2006
|
|
|
Audit
Fees
|
|
$
|
266,283
|
|
$
|
900,000
|
|
|
Tax
Fees (1)
|
|
|
—
|
|
|
|
|
|
All
Other Fees
|
|
|
|
|
|
|
|
|
Total
Fees
|
|
$
|
266,283
|
|
$
|
900,000
|
|
|
|
|
|
|
|
|
|
|
| (1) |
Fees
paid for preparation and filing of the Company's federal and state
income
tax returns.
|
All
fees
described above were approved by the Audit Committee. The Audit Committee has
determined that the rendering of the foregoing services other than audit
services by Ohrlings PricewaterhouseCoopers AB is compatible with maintaining
the principal accountant's independence.
PRE-APPROVAL
OF AUDIT AND NON-AUDIT SERVICES
The
Audit
Committee has not approved any formal policy concerning pre-approval of the
auditors to perform both audit and non-audit services (services other than
audit, review and attest services). Instead, on a case by case basis, any audit
or non-audit services proposed to be performed are considered by and, if deemed
appropriate, approved by the Audit Committee in advance of the performance
of
such services. All of the fees earned by Ohrlings PricewaterhouseCoopers AB
described above were attributable to services pre-approved by the Audit
Committee.
The
adoption of Proposal 5 will require the affirmative vote of the holders of
a
majority of those voting their shares.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF PROPOSAL
5.
The
following table sets forth certain information regarding the estimated ownership
of our common stock as of October 22, 2007 by: (i) each director and nominee
for
director; (ii) each of our “named executive officers,” as defined in Item 402
under Regulation S-K promulgated by the Securities and Exchange Commission;
(iii) all executive officers and directors of Neonode as a group; and (iv)
all
those known by us to be beneficial owners of more than five percent of our
common stock. Unless otherwise indicated, the address for each of the persons
and entities set forth below is c/o Neonode Inc. - Stockholder
address.
|
|
|
Beneficial
Ownership (1)
|
|
|
Beneficial
Owner
|
|
Number
of Shares
|
|
Percent
of Total(2)
|
|
| |
|
|
|
|
|
|
|
|
AIGH
Investment Partners LLC
6006
Berkeley Avenue
Baltimore,
MD 21209 (5)
|
|
|
4,866,447
|
|
|
19.2
|
%
|
| |
|
|
|
|
|
|
|
|
Per
Bystedt (3)(4)
|
|
|
4,043,411
|
|
|
16.5
|
%
|
| |
|
|
|
|
|
|
|
|
Magnus
Goertz (3)(6)
|
|
|
2,101,753
|
|
|
8.8
|
%
|
| |
|
|
|
|
|
|
|
|
Serwello
AB (7)
|
|
|
1,467,975
|
|
|
6.2
|
%
|
| |
|
|
|
|
|
|
|
|
Thomas
Eriksson (3)(8)
|
|
|
1,255,351
|
|
|
5.3
|
%
|
| |
|
|
|
|
|
|
|
|
Mikael
Hagman (3)
|
|
|
343,997
|
|
|
1.4
|
%
|
| |
|
|
|
|
|
|
|
|
Tommy
Hallberg (3)
|
|
|
122,175
|
|
|
0.5
|
%
|
| |
|
|
|
|
|
|
|
|
David
Brunton (3)
|
|
|
110,602
|
|
|
0.5
|
%
|
| |
|
|
|
|
|
|
|
|
John
Reardon (3)
|
|
|
68,539
|
|
|
0.3
|
%
|
| |
|
|
|
|
|
|
|
|
Johan
Ihrfelt (3)
|
|
|
32,670
|
|
|
0.1
|
%
|
| |
|
|
|
|
|
|
|
|
Susan
Major (3)
|
|
|
44,148
|
|
|
0.2
|
%
|
| |
|
|
|
|
|
|
|
|
All
executive officers and directors as a group (8 persons) (3)
|
|
|
8,019,726
|
|
|
31.3
|
%
|
|
|
|
|
|
|
|
|
|
|
(1)
|
This
table is based upon information supplied by officers, directors and
principal stockholders. Unless otherwise indicated in the footnotes
to
this table and subject to community property laws where applicable,
we
believe that each of the stockholders named in this table has sole
voting
and investment power with respect to the shares indicated as beneficially
owned.
|
|
(2)
|
Applicable
percentages are based on 23,708,602 shares, the estimated number
of shares
outstanding after the Merger, not adjusted for any reverse stock
split
contemplated by this proxy
statement.
|
|
(3)
|
Includes,
116,553, 296,680, 215,446, 211,914, 105,957, 79,000, 59,648, 32,670
and
44,148 shares that Messrs. Bystedt, Goertz, Eriksson, Hagman, Hallberg,
Brunton, Reardon, Irhfelt and Ms. Major, respectively, have the right
to
acquire within 60 days after the date of this table under outstanding
stock options.
|
|
(4)
|
Includes
2,987,384 shares and options or warrants to purchase an aggregate
of
715,705 shares held by Iwo Jima Sarl and 211,861 shares and 12,438
warrants issuable to Spray AB. Iwo Jima Sarl and Spray AB may be
deemed
affiliates of Mr. Bystedt.
|
|
(5)
|
Includes,
1,623,150 shares that AIGH Investment Partners LLC has the right
to
acquire under common stock warrant
agreements.
|
|
(6)
|
Includes
1,805,074 shares held by Athemis Limited, which may be deemed an
affiliate
of Mr. Goertz.
|
|
(7)
|
Includes,
35,558 shares that Serwello AB has the right to acquire under common
stock
warrant agreements.
|
|
(8)
|
Includes
1,039,905 shares held by Wirelesstoys Sweden AB, which may be deemed
an
affiliate of Mr. Ericksson.
|
|
|
|
|
|
|
By
Order of the Board of Directors,
|
|
|
|
|
|
|
|
/s/ David
Brunton
|
|
|
David
Brunton
|
|
|
Secretary
|
San
Ramon, California
___________,
2007