Delaware
|
94-1517641
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer Identification Number)
|
Large
accelerated filer o
|
Accelerated
filer o
|
Non-accelerated
filer o
|
Smaller
reporting company x
|
Title of each class
of securities to be
registered
|
Amount to be
registered (1)
|
Proposed
maximum offering
price per share (2)
|
Proposed
maximum
aggregate offering
price (2)
|
Amount of
registration fee
|
|||||||||
Common stock,
par value $.01 per share
|
15,733,607
|
$
|
0.30
|
$
|
4,720,082
|
$
|
186
|
(1)
|
The
amount is comprised of (i) 6,012,288 shares of the registrant’s
common stock and (ii) 9,721,319 shares of the registrant’s common stock
issuable upon the exercise of warrants. The shares and warrants are
held
by certain selling stockholders named in the prospectus contained
herein
and any supplements thereto. The registrant is not selling any shares
of
common stock in this offering and therefore will not receive any
proceeds
from this offering. Pursuant to Rule 416 under the Securities Act
of 1933,
as amended (the “Securities Act”), the shares being registered hereunder
include such indeterminate number of shares of the registrant’s common
stock as may be issuable with respect to the shares being registered
hereunder to prevent dilution by reason of any stock dividend, stock
split, recapitalization or other similar
transaction.
|
(2)
|
Estimated
solely for the purpose of calculating the amount of the registration
fee
pursuant to Rule 457(c) of the Securities Act. The proposed
maximum offering price per share and proposed maximum aggregate offering
price are based upon the average of the high ($0.34) and low ($0.26)
sales
prices of the registrant’s common stock on July 1, 2008, as reported
on the NASDAQ Capital Market. It is not known how many shares will
be sold
under this registration statement or at what price or prices such
shares
will be sold.
|
Page
|
|
About
This Prospectus
|
1
|
Prospectus
Summary
|
2
|
Risk
Factors
|
4
|
Cautionary
Statement Concerning Forward-Looking Information
|
14
|
Use
of Proceeds
|
14
|
Selling
Stockholders
|
15
|
Relationship
of Selling Stockholders to the Company
|
22
|
Plan
of Distribution
|
23
|
Legal
Matters
|
24
|
Experts
|
24
|
25
|
|
Incorporation
of Certain Documents by Reference
|
25
|
·
|
the
growth of mobile telephone usage;
|
·
|
the
efforts of our marketing partners;
|
·
|
the
level of competition faced by us; and
|
·
|
our
ability to meet customer demand for products and ongoing service.
|
·
|
manufacture
phones with defects that fail to perform to our specifications;
|
·
|
fail
to meet delivery schedules; or
|
·
|
fail
to properly service phones or honor warranties.
|
·
|
testing
of our products on wireless carriers’
networks;
|
·
|
quality
and coverage area of wireless voice and data services offered by
the
wireless carriers;
|
·
|
the
degree to which wireless carriers facilitate the introduction of
and
actively market, advertise, promote, distribute and resell our multimedia
phone products;
|
·
|
the
extent to which wireless carriers require specific hardware and software
features on our multimedia phone to be used on their
networks;
|
·
|
timely
build out of advanced wireless carrier networks that enhance the
user
experience for data centric services through higher speed and other
functionality;
|
·
|
contractual
terms and conditions imposed on them by wireless carriers that, in
some
circumstances, could limit our ability to make similar products available
through competitive carriers in some market
segments;
|
·
|
wireless
carriers’ pricing requirements and subsidy programs;
and
|
·
|
pricing
and other terms and conditions of voice and data rate plans that
the
wireless carriers offer for use with our multimedia phone
products.
|
·
|
changes
in foreign currency exchange rates;
|
·
|
the
impact of recessions in the global economy or in specific sub
economies;
|
·
|
changes
in a specific country’s or region’s political or economic conditions,
particularly in emerging markets;
|
·
|
changes
in international relations;
|
·
|
trade
protection measures and import or export licensing
requirements;
|
·
|
changes
in tax laws;
|
·
|
compliance
with a wide variety of laws and regulations which may have civil
and/or
criminal consequences for them and our officers and directors who
they
indemnify;
|
·
|
difficulty
in managing widespread sales operations;
and
|
·
|
difficulty
in managing a geographically dispersed workforce in compliance with
diverse local laws and customs.
|
·
|
actual
or anticipated fluctuations in our operating results or future
prospects;
|
·
|
our
announcements or our competitors’ announcements of new
products;
|
·
|
the
public’s reaction to our press releases, our other public announcements
and our filings with the SEC;
|
·
|
strategic
actions by us or our competitors, such as acquisitions or
restructurings;
|
·
|
new
laws or regulations or new interpretations of existing laws or regulations
applicable to our business;
|
·
|
changes
in accounting standards, policies, guidance, interpretations or
principles;
|
·
|
changes
in our growth rates or our competitors’ growth
rates;
|
·
|
developments
regarding our patents or proprietary rights or those of our
competitors;
|
·
|
our
inability to raise additional capital as
needed;
|
·
|
concern
as to the efficacy of our products;
|
·
|
changes
in financial markets or general economic
conditions;
|
·
|
sales
of common stock by us or members of our management team;
and
|
·
|
changes
in stock market analyst recommendations or earnings estimates regarding
our common stock, other comparable companies or our industry
generally.
|
·
|
except
as otherwise noted in footnote (2) to the table, beneficial ownership
is
determined under Section 13(d) of the Securities Exchange Act of 1934
and generally includes voting or investment power with respect to
securities and including any securities that grant the selling stockholder
the right to acquire common stock within 60 days of July 1,
2008;
|
·
|
unless
otherwise indicated below, to our knowledge, the selling stockholders
named below have sole voting and investment power with respect to
their
shares of common stock, except to the extent authority is shared
by
spouses under applicable law; and
|
·
|
the
selling stockholders may sell all of the securities offered by this
prospectus under certain
circumstances.
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BEFORE
|
SHARES OF
COMMON STOCK
|
SHARES BENEFICIALLY
OWNED AFTER OFFERING
|
|||||||||||
SELLING STOCKHOLDERS(1)
|
OFFERING
|
BEING OFFERED(2)
|
|
NUMBER(2)
|
|
PERCENTAGE
|
|||||||
Hendren Family
Limited Partnership, LLP
|
|||||||||||||
Young
Il Chun
|
|||||||||||||
Robert
Irelan
|
|||||||||||||
Richard
Clack
|
|||||||||||||
Dr.
Gabor Rubanyi
|
|||||||||||||
Anthony
& Maryellen Vassallo
|
|||||||||||||
Block
Family Trust
|
|||||||||||||
DJB
Holding Corporation
|
|||||||||||||
Empire
Asset Management Company
|
|||||||||||||
Thomas
Cruikshank
|
|||||||||||||
David
Berman
|
|||||||||||||
Robert
Desmarais
|
|||||||||||||
Robert
Baratta
|
|||||||||||||
Transpro
Property & Casualty Insurance Corp.
|
|||||||||||||
Gilbert
A. Flores Irrevocable Management Trust
|
|||||||||||||
A
& S Levy Family Holdings, LLP
|
|||||||||||||
Robho
Properties, Inc.
|
|||||||||||||
Pinnacle
Advertising
|
|||||||||||||
Joe
& Sharon Keirouz
|
|||||||||||||
Tim
Alley
|
|||||||||||||
W.P.
Malone, Inc.
|
|||||||||||||
Charles
Green
|
|||||||||||||
Dr.
William Jones
|
|||||||||||||
Gary
Heihn
|
|||||||||||||
Banca
Partner SPA
|
|||||||||||||
Jeffrey
Allard
|
|||||||||||||
Charles
Schumann
|
|||||||||||||
Nick
Scott
|
|||||||||||||
Dudley
Frank
|
|||||||||||||
Charles
Helsley
|
|||||||||||||
Valdimiro
Panichi
|
|||||||||||||
David
& Christine Thoman
|
|||||||||||||
Lynn
Adams Distributing Co., Inc.
|
|||||||||||||
Domenico
Iannucci
|
|||||||||||||
Kevin
Le
|
|||||||||||||
The
Lanovara Family Trust
|
|||||||||||||
Mark
Mann
|
|||||||||||||
Richard
Majeres
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BEFORE
|
SHARES OF
COMMON STOCK
|
SHARES BENEFICIALLY
OWNED AFTER OFFERING
|
|||||||||||
SELLING STOCKHOLDERS(1) |
OFFERING
|
BEING OFFERED(2)
|
NUMBER(2)
|
PERCENTAGE
|
|||||||||
Robert
Marvin
|
|||||||||||||
Robert
Hennen
|
|||||||||||||
Sidney
Gilreath
|
|||||||||||||
James
& Judy Lesley
|
|||||||||||||
Dr.
Bob Marshall
|
|||||||||||||
Robert
Lange
|
|||||||||||||
Susan
Bergtraum
|
|||||||||||||
Louis
T. Bascoy
|
|||||||||||||
Brian
Fortner
|
|||||||||||||
William
E. Jackson
|
|||||||||||||
Excellent
Inc Retirement Trust
|
|||||||||||||
Garr
Godfrey
|
|||||||||||||
Kevin
Howe
|
|||||||||||||
Symetrix
Solutions, Inc.
|
|||||||||||||
Charles
Carver
|
|||||||||||||
Michael
Tusing
|
|||||||||||||
Randall
E. James Oil Co MPP
|
|||||||||||||
RMB
Equipment, Inc.
|
|||||||||||||
Kenneth
Harris
|
|||||||||||||
James
Timothy Dye
|
|||||||||||||
Richard
K. Abbe, Custodian for Abbe, Bennett (3)
|
|||||||||||||
Richard
K. Abbe, Custodian for Abbe, Samantha (4)
|
|||||||||||||
Richard
K. Abbe, Custodian for Abbe, Talia (5)
|
|||||||||||||
Alpha
Capital Anstalt (6)
|
|||||||||||||
Centurian
Microcap LP (7)
|
|||||||||||||
Chana
Sasha Foundation (8)
|
|||||||||||||
CMS
Capital (9)
|
|||||||||||||
Scot
Cohen (10)
|
|||||||||||||
EL
Equities LLC (11)
|
|||||||||||||
Ellis
International LP (12)
|
|||||||||||||
Globis
Capital Partners LP (13)
|
|||||||||||||
Globis
Overseas Fund, Ltd. (14)
|
|||||||||||||
Iroquois
Master Fund Ltd (15)
|
|||||||||||||
Longview
Fund, LP (16)
|
648,282 | 35,162 | 613,120 | 2.0% | |||||||||
LRG
Holdings Inc (17)
|
|||||||||||||
Puritan
Associates LLC (18)
|
|||||||||||||
Rockmore
Investment Master Fund Ltd (19)
|
|||||||||||||
Joshua
Silverman (20)
|
|||||||||||||
Truk
International Fund LP (21)
|
|||||||||||||
Truk
Opportunity Fund LLC (22)
|
|||||||||||||
Whalehaven
Capital Fund Ltd (23)
|
|||||||||||||
Aaron
Wolfson (24)
|
|||||||||||||
Wolfson
Equities (25)
|
|||||||||||||
Sten
Wranne (26)
|
|||||||||||||
AIGH
Investment Partners, LLC
|
|||||||||||||
Hershel
Berkowitz
|
|||||||||||||
James
Kardon
|
|||||||||||||
Abraham
Wolfson
|
|||||||||||||
Morris
Wolfson
|
NUMBER OF
SHARES
ENEFICIALLY
OWNED BEFORE
|
SHARES OF
COMMON STOCK
|
SHARES BENEFICIALLY
OWNED AFTER OFFERING
|
|||||||||||
SELLING STOCKHOLDERS(1) |
OFFERING
|
|
BEING OFFERED(2)
|
NUMBER(2)
|
PERCENTAGE
|
||||||||
William
Heinzerling
|
|||||||||||||
Airstream
Enterprise AB
|
|||||||||||||
Anders
Diephuis
|
|||||||||||||
Göran
Andersson
|
|||||||||||||
Andre
Hedberg
|
|||||||||||||
Niclas
Rodin
|
|||||||||||||
Daniel
Stålbo
|
|||||||||||||
Dectra
S.a.r.l.
|
|||||||||||||
Deseven
Capital AB
|
|||||||||||||
Gustafsson,Staffan
|
|||||||||||||
Jesper
Lagercrantz
|
|||||||||||||
Johan
Eriksson
|
|||||||||||||
Johan
Högberg Livs AB
|
|||||||||||||
Jonas
Litborn
|
|||||||||||||
Karl
Asp
|
|||||||||||||
Lennart
Brunnberg
|
|||||||||||||
Lombard
International Assurance S.A.
|
|||||||||||||
Petter
Lundgren
|
|||||||||||||
Michael
Jönsson
|
|||||||||||||
Per
Hellberg
|
|||||||||||||
Becontree
Trading Limited
|
|||||||||||||
Jan
Litborn
|
|||||||||||||
Sontagh
& Larsson Investment Strategy AB
|
|||||||||||||
Ulf
Mårtensson
|
|||||||||||||
Watchet
Consultants Limited
|
|||||||||||||
Almi
Företagspartner Stockholm AB
|
|||||||||||||
Iwo
Jima Sarl
|
|||||||||||||
Mikael
Hagman
|
|||||||||||||
Petrus
Holdings S.A.
|
|||||||||||||
Paul
Packer
|
|||||||||||||
Jack
Dodich
|
|||||||||||||
AME
Capital Group LLC
|
|||||||||||||
Cam
Co.
|
|||||||||||||
Electrum
Capital Partners LP
|
|||||||||||||
Eliyohu
Rechnitzer
|
|||||||||||||
Fame
Associates
|
|||||||||||||
Ganot
Corporation
|
|||||||||||||
Joseph
Bronner
|
|||||||||||||
Joshua
Hirsch
|
|||||||||||||
Kevin
J. McCaffrey
|
|||||||||||||
LaPlace
Group LLC
|
|||||||||||||
Lyon
Polk
|
|||||||||||||
North
America Investments Limited (27)
|
|||||||||||||
Richard
Grossman
|
|||||||||||||
Shalom
Torah Centers
|
|||||||||||||
Steven
W. Spira
|
|||||||||||||
The
Tzedakah Fund
|
|||||||||||||
Cam-Elm
Company LLC
|
|||||||||||||
GPEG,
LLC
|
|||||||||||||
Hilary
Edson
|
|||||||||||||
Moshe
Shuchatowitz
|
|||||||||||||
Michael
Fields
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BEFORE
|
SHARES OF
COMMON STOCK
|
SHARES BENEFICIALLY
OWNED AFTER OFFERING
|
|||||||||||
SELLING STOCKHOLDERS(1) |
OFFERING
|
BEING OFFERED(2)
|
NUMBER(2)
|
PERCENTAGE
|
|||||||||
Randall
& Lori James
|
|||||||||||||
Domenico
Alessi
|
|||||||||||||
Gilberto
Pazzeschi
|
|||||||||||||
Jennifer
McGuinn
|
|||||||||||||
Giorgio,
USA
|
|||||||||||||
Dennis
Fortin
|
|||||||||||||
Sam
Nebenzahal
|
|||||||||||||
Susan
Major
|
|||||||||||||
Brio
Capital LP
|
|||||||||||||
Ramin
Remo Bedhasht – Blue Storm
|
|||||||||||||
Lane
Ventures
|
*
|
less
than one percent
|
(1)
Unless otherwise noted, this table is based on information supplied
to us
by the selling stockholders and certain records of the
company.
|
(2)
We do not know when or in what amounts a selling stockholder may
offer
shares for sale. The selling stockholders might not sell any or all
of the
shares offered by this prospectus. Because the selling stockholders
may
offer all or some of the shares pursuant to this offering and because
there are currently no agreements, arrangements or understandings
with
respect to the sale of any of the shares, we cannot estimate the
number of
the shares that will be held by the selling stockholders after completion
of the offering. However, for purposes of this table, we have assumed
that, after completion of the offering, none of the shares covered
by this
prospectus will be held by the selling stockholders.
|
(3)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Richard Abbe has sole
voting
and investment control over such shares. The business address for
the
selling stockholder is 641 Lexington Ave., 26th
Fl., New York, NY 10022.
|
(4)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Richard Abbe has sole
voting
and investment control over such shares. The business address for
the
selling stockholder is 641 Lexington Ave., 26th
Fl., New York, NY 10022.
|
(5)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______ shares
of common
stock issuable upon the exercise of warrants. Richard Abbe has sole
voting
and investment control over such shares. The business address for
the
selling stockholder is 641 Lexington Ave., 26th
Fl., New York, NY 10022.
|
(6)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly and_______shares
of common stock issuable upon the exercise of warrants. The total
number
of shares beneficially owned before the offering includes_______shares
held directly, as well as_______shares of common stock issuable
upon conversion of Notes and_______shares of common stock issuable
upon
the exercise of warrants. Konrad Ackerman has sole voting and investment
control over such shares. The business address for the selling stockholder
is 150 Central Park South, Second Floor, New York, NY
10019.
|
(7)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants Abraham Schwartz has
sole
voting and investment control over such shares. The business address
for
the selling stockholder is 3014 Avenue L, Brooklyn, NY
11210.
|
(8)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Morris Wolfson has
sole
voting and investment control over such shares. The business address
for
the selling stockholder is One State Street Plaza, 29th,
Fl., New York, NY 10004.
|
(9)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Menachem Lipsker and
Howard
Weiss have shared voting and investment control over such shares.
The
business address for the selling stockholder is 9612 Van Nuys Blvd.,
Suite
108, Panorama City, CA 91402.
|
(10)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Scot Cohen has sole
voting and investment control over such shares. The business address
for
the selling stockholder is 641 Lexington Ave., 26th
Fl., New York, NY 10022.
|
(11)
The shares of common stock being offered in this offering are comprised
of_______shares of common stock held directly and_______shares
of common stock issuable upon the exercise of warrants. The total
number
of shares beneficially owned before the offering include_______shares
held
directly, as well as_______shares of common stock issuable upon
conversion of Notes and_______shares of common stock issuable upon
the
exercise of warrants. Eli Leviton has sole voting and investment
control
over such shares. The business address for the selling stockholder
is One
State Street Plaza, New York, NY 10004.
|
(12)
The shares of common stock being offered in this offering are comprised
of_______shares of common stock held directly and_______shares
of common stock issuable upon the exercise of warrants. The total
number
of shares beneficially owned before the offering includes_______shares
held directly, as well as_______shares of common stock issuable
upon conversion of Notes and shares of common stock issuable upon
the
exercise of warrants. Martin Chopp has sole voting and investment
control
over such shares. The business address for the selling stockholder
is c/o
SDC Capital, 20 East Sunrise Hwy., Suite 302, Valley Stream, NY
11581.
|
(13)
The shares of common stock being offered in this offering are comprised
of
shares_______of common stock held directly and_______shares
of common stock issuable upon the exercise of warrants. The total
number
of shares beneficially owned before the offering include_______shares
held
directly, as well
as shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Paul Packer has sole
voting
and investment control over such shares. The business address for
the
selling stockholder is 60 Broad Street, 38th
Floor, New York, NY 10004.
|
(14)
The shares of common stock being offered in this offering are comprised
of_______shares of common stock held directly and_______shares
of common stock issuable upon the exercise of warrants. The total
number
of shares beneficially owned before the offering include_______shares
held
directly, as well as_______shares of common stock issuable upon
conversion of Notes and_______shares of common stock issuable upon
the
exercise of warrants. Paul Packer has sole voting and investment
control
over such shares. The business address for the selling stockholder
is 60
Broad Street, 38th
Floor, New York, NY 10004.
|
(15)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Joshua Silverman has
sole
voting and investment control over such shares. Mr. Silverman disclaims
beneficial ownership of these shares. The business address for the
selling stockholder is 641 Lexington Ave., 26th
Fl., New York, NY 10022.
|
(16)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering includes
201,829 shares held directly, as well as 214,286 shares of
common stock issuable upon conversion of Notes and 232,167 shares
of
common stock issuable upon the exercise of warrants. Peter T. Benz
has
sole voting and investment control over such shares. The business
address
for the selling stockholder is 600 Montgomery Street, 44th
Floor, San Francisco, CA 94111.
|
(17)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Shimshon Gross has
sole
voting and investment control over such shares. The business address
for
the selling stockholder is 22 St. Clair Ave. East, Suite 1501, Toronto,
Ontario M4T DS3.
|
(18)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon the exercise of warrants. Chana Friedman and
Miriam
Gross have shared voting and investment control over such shares.
The
business address for the selling stockholder is 314 McDonald Avenue,
Brooklyn, NY 12118.
|
(19)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering includes
shares held directly, as well as_______shares of common stock
issuable upon conversion of Notes and_______shares of common stock
issuable upon exercise of warrants. The business address for the
selling
stockholder is 150 East 58th
Street, New York, NY 10155. Rockmore Capital, LLC (“Rockmore Capital”) and
Rockmore Partners, LLC (“Rockmore Partners”), each a limited liability
Company formed under the laws of the State of Delaware, serve as
the
investment manager and general partner, respectively, to Rockmore
Investments (US) LP, a Delaware limited partnership, which invests
all of
its assets through Rockmore Investment Master Fund Ltd., an exempted
company formed under the laws of Bermuda (“Rockmore Master Fund”). By
reason of such relationships, Rockmore Capital and Rockmore Partners
may
be deemed to share dispositive power over the shares of our common
stock
owned by Rockmore Master Fund. Rockmore Capital and Rockmore Partners
disclaim beneficial ownership of such shares of our common stock.
Rockmore
Partners has delegated authority to Rockmore Capital regarding the
portfolio management decisions with respect to the shares of common
stock
owned by Rockmore Master Funs and, as of September 10, 2007, Mr.
Bruce T.
Bernstein and Mr. Brian Daly, as officers of Rockmore Capital, are
responsible for the portfolio management decisions of the shares
of common
stock owned by Rockmore Master Fund. By reason of such authority,
Messrs.
Bernstein and Daly may be deemed to share dispositive power over
the
shares of our common stock owned by Rockmore Master Fund. Messrs.
Bernstein and Daly disclaim any beneficial ownership of such shares
of our
common stock and neither of such persons has any legal right to maintain
such authority. No other person has sole or shared voting or dispositive
power with respect to the shares of our common stock as those terms
are
used for purposes under Regulation 13D-G of the Securities Exchange
Act of
1934, as amended. No person or “group” (as that term is used in Section
13(d) of the Securities Exchange Act of 1934, as amended, or the
SEC’s
Regulation 13D-G) controls Rockmore Master Fund.
|
(20)
Also includes shares of common stock held by Iroquois Master Fund
Ltd. The
shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon exercise of warrants. Joshua Silverman has sole
voting
and investment control over such shares. The business address for
the
selling stockholder is 641 Lexington Ave., 26th
Fl., New York, NY 10022.
|
(21)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon exercise of warrants. Michael Fein and Stephen
Satterstein have shared voting and investment control over such shares.
The business address for the selling stockholder is One East
52nd
Street, 6th
Floor, New York, NY 10022.
|
(22)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly. The
total number of shares beneficially owned before the offering
includes_______shares held directly, as well as_______shares of
common stock issuable upon conversion of Notes and_______shares of
common
stock issuable upon exercise of warrants. Michael Fein and Stephen
Satterstein have shared voting and investment control over such shares.
The business address for the selling stockholder is One East
52nd
Street, 6th
Floor, New York, NY 10022.
|
(23)
The shares of common stock being offered in this offering are comprised
of_______shares of common stock held directly and_______shares
of common stock issuable upon the exercise of warrants. The total
number
of shares beneficially owned before the offering includes_______shares
held directly, as well as_______shares of common stock issuable
upon conversion of Notes and_______shares of common stock issuable
upon
exercise of warrants. Michael Finkelstein, Arthur Jones, Brian Mazzella
and Trevor Williams have shared voting and investment control over
such
shares. The business address for the selling stockholder is 160 Summit
Avenue, Mentvale, NJ 07645.
|
(24)
Also includes shares of common stock held by Wolfson Equities. The
shares
of common stock being offered in this offering are comprised of shares
of
common stock held directly and_______shares
of common stock issuable upon the exercise of warrants. The total
number
of shares beneficially owned before the offering includes_______shares
held directly, as well as_______shares of common stock issuable
upon conversion of Notes and_______shares of common stock issuable
upon
exercise of warrants. Aaron Wolfson has sole voting and investment
control
over such shares. The business address for the selling stockholder
is One
State Street Plaza, 29th,
Fl., New York, NY 10004.
|
(25)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly and_______shares of common stock
issuable upon the exercise of warrants. The total number of shares
beneficially owned before the offering includes_______shares held
directly, as well as_______shares of common stock issuable upon conversion
of Notes and
shares of common stock issuable upon exercise of warrants. Aaron
Wolfson
has sole voting and investment control over such shares. The business
address for the selling stockholder is One State Street Plaza,
29th,
Fl., New York, NY 10004.
|
(26)
The shares of common stock being offered in this offering are comprised
of
shares of common stock held directly and_______shares of common stock
issuable upon the exercise of warrants. The total number of shares
beneficially owned before the offering includes_______shares held
directly, as well as_______shares of common stock issuable upon conversion
of Notes and_______shares of common stock issuable upon exercise
of
warrants. Sten Wranne has sole voting and investment control over
such
shares. The business address for the selling stockholder is Birger
Jarlsg 38 11429 Stockholm Sweden.
|
(27)
The shares of common stock being offered in this offering are comprised
of_______shares of common stock held directly and_______shares of
common
stock issuable upon exercise of warrants. The
total number of shares beneficially owned before the offering includes
shares held directly_______shares issuable upon the exercise of
warrants. Zvi Levy has sole voting and investment control over
such shares. The business address for the selling stockholder is
P.O. Box
3236, Ramet Gan, 52131 Israel.
|
·
|
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.
|
·
|
Our
Annual Report on Form 10-K for the year ended December 31, 2007 filed
with the SEC on April 15,
2008;
|
·
|
Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2008
filed with the SEC on May 20,
2008;
|
·
|
Our
Current Reports on Form 8-K filed with the SEC on April 17, 2008;
May 27,
2008; May 28, 2008; June 2, 2008; June 9, 2008 and July 2,
2008;
|
·
|
The
information specifically incorporated by reference into our annual
report
on Form 10-K for the fiscal year ended December 31, 2007 from our
definitive proxy statement on Schedule 14A, filed with the SEC on
April
29, 2008; and
|
·
|
The
description of our common stock included in our registration statement
on
Form 8-A.
|
SEC
registration fee
|
$
|
186
|
||
Legal
fees and expenses
|
$
|
30,000
|
||
Accounting
fees and expenses
|
$
|
3,500
|
||
Miscellaneous
fees and expenses
|
$
|
10,000
|
||
Total
|
$
|
43,686
|
·
|
for
any transaction from which the director derives an improper personal
benefit;
|
·
|
for
acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law;
|
·
|
for
improper payment of dividends or redemptions of shares;
or
|
·
|
for
any breach of a director’s duty of loyalty to the corporation or its
stockholders.
|
Number
|
Exhibit
|
|
5.1
|
Opinion
of Reed Smith LLP *
|
|
5.2
|
Opinion
of Hahn & Hessen LLP
|
|
23.1
|
Consent
of Independent Registered Public Accounting Firm
|
|
23.2
|
Consent
of Reed Smith LLP (included in the opinion filed as Exhibit 5.1)
*
|
|
23.3
|
Consent
of Hahn & Hessen LLP (included in the opinion filed as Exhibit
5.2)
|
|
24.1
|
Power
of Attorney (included in signature page
hereto)
|
(1)
|
To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration
statement:
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933, as amended (the “Securities
Act”);
|
(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 Securities and
Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration
statement.
|
(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
of 1933
to any purchaser:
|
(i)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be
deemed to be part of the registration statement as of the date the
filed
prospectus was deemed part of and included in the registration statement;
and
|
(ii)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii),
or (x)
for the purpose of providing the information required by section
10(a) of
the Securities Act of 1933 shall be deemed to be part of and included
in
the registration statement as of the earlier of the date such form
of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer
and any person that is at that date an underwriter, such date shall
be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be
deemed
to be the initial bona fide offering thereof. Provided, however,
that no
statement made in a registration statement or prospectus that is
part of
the registration statement or made in a document incorporated or
deemed
incorporated by reference into the registration statement or prospectus
that is a part of the registration statement will, as to a purchaser
with
a time of contract sale prior to such effective date, supersede or
modify
any statement that was made in the registration statement or prospectus
that was a part of the registration statement or made in any such
document
immediately prior to such effective
date.
|
NEONODE
INC.
|
||
By:
|
/s/David
W. Brunton
|
|
David
W. Brunton
|
||
Chief
Financial Officer, Vice President, Finance
and
Secretary
|
Title(s)
|
Date
|
|||
/s/ Per
Bystedt
|
Interim
Chief Executive Officer, Chairman
|
July 7,
2008
|
||
Per
Bystedt
|
(Principal
Executive Officer)
|
|||
/s/ David
W. Brunton
|
Chief
Financial Officer, Vice President, Finance
|
July 7,
2008
|
||
David
W. Brunton
|
and Secretary | |||
|
(Principal
Financial and Accounting Officer)
|
|||
|
||||
/s/ Susan
Major
|
Director
|
July 7,
2008
|
||
Susan
Major
|
||||
/s/ Kenneth
Olson
|
Director
|
July 7,
2008
|
||
Kenneth
Olson
|
|
|
|
|
Director
|
July 7,
2008
|
|||
John
Reardon
|
Number
|
Exhibit
|
|
5.1
|
Opinion
of Reed Smith LLP *
|
|
5.2
|
Opinion
of Hahn & Hessen LLP
|
|
23.1
|
Consent
of Independent Registered Public Accounting Firm
|
|
23.2
|
Consent
of Reed Smith LLP (included in the opinion filed as Exhibit 5.1)
*
|
|
23.3
|
Consent
of Hahn & Hessen LLP (included in the opinion filed as
Exhibit 5.2)
|
|
24.1
|
Power
of Attorney (included in signature page
hereto)
|