<PAGE>
As filed with the Securities and Exchange Commission on December 7, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GRAPHON CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3899021
(State of incorporation) (I.R.S. Employer Identification No.)
400 Cochrane Circle
Morgan Hill, California 95037
(408) 201-7100
(Address and telephone number of registrant's principal executive offices)
Walter Keller
President
Graphon Corporation
400 Cochrane Circle
Morgan Hill, California 95037
(408) 201-7100
(Name, address and telephone number of agent for service)
Copies of all communications and notices to:
Ira I. Roxland, Esq.
Sonnenschein Nath & Rosenthal
1221 Avenue of the Americas, 24th Floor
New York, NY 10020-1089
Tel: (212) 768-6700
Fax: (212) 768-6800
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[_]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.[X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[_]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.[_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum
Title Of Shares Amount To Be Aggregate Price Proposed Maximum Amount Of
To Be Registered Registered Per Share (1) Aggregate Offering Price Registration Fee
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 300,000 shs. $ 3.00 $ 900,000 $ 237.60
$.0001 per share
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
Subject to Completion - December 7, 2000
Prospectus
GRAPHON CORPORATION
300,000 shares of Common Stock
----------------
The persons named on page 8 of this prospectus, whom we call the
"selling stockholders," may use this prospectus to offer and sell from time to
time up to 300,000 shares of our common stock. We are registering these shares
for offer and sale as required under the terms of a registration rights
agreement between us and the selling stockholders. Our registration of the
offered shares does not mean that any or all of the selling stockholders will
offer or sell any of these shares. We will receive no proceeds of any sales of
the offered shares by the selling stockholders.
Our common stock is quoted on The Nasdaq National Market under the
symbol "GOJO." The closing price of our common stock on December 6, 2000 was
$2.00 per share.
Please read the Risk Factors beginning on page 3 of this prospectus
before making a decision to invest in our common stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. It is illegal for any person to tell you
otherwise.
----------------
December , 2000
<PAGE>
OUR BUSINESS
We develop, market, sell and support server-based software for the
enterprise computing environment. Server-based computing, sometimes referred to
as thin-client computing, is a computing model where traditional desktop
software applications are relocated to run entirely on a server or host
computer. Our technology uses a small software program at each desktop, which
allows the user to interface with an application as if it were running on the
user's desktop computer. This centralized deployment and management of
applications reduces the complexity and total costs associated with enterprise
computing. In addition, the ability to access such applications over the
Internet creates new operational models and sales channels. We provide the
technology to access applications over the Internet. Our server-based technology
works on today's most powerful personal computer or low-end network computer,
without application rewrites or changes to the corporate computing
infrastructure.
We have established strategic alliances with technology leaders such as
Sun Microsystems, Compuware and Corel, who have licensed our technology. Using
our technology, Sun Microsystems provides its network computers access to UNIX
applications. Compuware has expressed its intention to use our technology to
provide access over the Internet to applications built with its UNIFACE product.
Corel currently plans to use our technology to provide access to some of its
applications, such as WordPerfect(TM), over the Internet.
We are headquartered in Morgan Hill, California with offices in
Bellevue, Washington, Concord, New Hampshire, and Reading, United Kingdom.
We were incorporated in California in 1982 and reincorporated in
Delaware in July, 1999. Our executive offices are located at 400 Cochrane
Circle, Morgan Hill, California 95037. Our telephone number is (408) 201-7100.
THE OFFERING
Common stock offered for sale
by the selling stockholders......................... 300,000 shares (1)
Common stock to be outstanding
After offering...................................... 14,958,870 shares (2)
------------
(1) Represents shares issuable upon exercise of outstanding warrants.
(2) Based upon our issued and outstanding shares of common stock as of
September 30, 2000. This number excludes 1,130,883 and 1,832,137 shares
of our common stock which are issuable upon exercise of, respectively,
other of our outstanding warrants and options under our stock option
plans. An additional 1,386,152 shares are reserved for future grants
under our stock option plans.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock
offered by the selling stockholders. If all of the warrants, which relate to the
common stock being offered by the selling stockholders, are exercised, we will
receive gross proceeds of $1,575,000. We intend to use such proceeds for working
capital and other general corporate purposes.
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RISK FACTORS
Prospective investors should consider carefully the risk factors set
forth below as well as the other information contained or incorporated by
reference in this prospectus prior to making an investment in our common stock.
We have a history of operating losses and expect these losses to continue and
increase, at least for the near future.
We have experienced significant losses since we began operations. We
expect to continue to incur significant losses for the foreseeable future. We
incurred net losses of approximately $ 5,433,000 for the nine month period ended
September 30, 2000, $7,033,400 for the year ended December 31, 1999 and
$2,148,500 for the year ended December 31, 1998. We expect our expenses to
increase as we expand our business but cannot assure you that our revenues will
increase as a result of increased spending. If revenues grow more slowly than
anticipated, or if operating expenses exceed expectations, we may not become
profitable. Even if we become profitable, we may be unable to sustain
profitability.
Our operating results in one or more future periods are likely to fluctuate
significantly and may fail to meet or exceed the expectations of securities
analysts or investors
Our operating results are likely to fluctuate significantly in the
future on a quarterly and on an annual basis due to a number of factors, many of
which are outside our control. Factors that could cause our revenues to
fluctuate include the following:
. the degree of success of new products;
. variations in the timing of and shipments of our products;
. variations in the size of orders by our customers;
. increased competition;
. the proportion of overall revenues derived from different sales
channels such as distributors, OEMs and other;
. changes in our pricing policies or those of our competitors;
. the financial stability of major customers;
. new product introductions or enhancements by us or by
competitors;
. delays in the introduction of products or product enhancements by
us or by competitors;
. any changes in operating expenses; and
. general economic conditions and economic conditions specific to
the software industry.
In addition, our royalty and license revenues are impacted by
fluctuations in OEM licensing activity from quarter to quarter which may involve
one-time royalty payments and license fees. Our expense levels are based, in
part, on expected future orders and sales. Therefore, if orders and sales levels
are below expectations, our operating results are likely to be materially
adversely affected. Additionally, because a significant portion of our expenses
are fixed, a reduction in sales levels may disproportionately affect our net
income. Also, we may reduce prices or increase spending in response to
competition or to pursue new market opportunities. Because of these factors, our
operating results in one or more future periods may fail to meet or exceed the
expectations of securities analysts or investors. In that event, the trading
price of our common stock would likely decline.
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Our failure to adequately protect our proprietary rights may adversely affect us
Our commercial success is dependent, in large part, upon our ability to
protect our proprietary rights. We rely on a combination of patent, copyright
and trademark laws, and on trade secrets and confidentiality provisions and
other contractual provisions to protect our proprietary rights. These measures
afford only limited protection. We cannot assure you that measures we have taken
will be adequate to protect us from misappropriation or infringement of our
intellectual property. Despite our efforts to protect proprietary rights, it may
be possible for unauthorized third parties to copy aspects of our products or
obtain and use information that we regard as proprietary. In addition, the laws
of some foreign countries do not protect our intellectual property rights as
fully as do the laws of the United States. Furthermore, we cannot assure you
that the existence of any proprietary rights will prevent the development of
competitive products. The infringement upon or loss of any proprietary rights,
or the development of competitive products despite such proprietary rights,
could have a material adverse effect on our business.
We face risks of claims from third parties for intellectual property
infringement that could adversely affect our business
At any time, we may receive communications from third parties asserting
that features or content of our products may infringe upon their intellectual
property rights. Any such claims, with or without merit, and regardless of their
outcome, may be time consuming and costly to defend. We may not have sufficient
resources to defend such claims and they could divert management's attention and
resources, cause product shipment delays or require us to enter into new royalty
or licensing agreements. New royalty or licensing agreements may not be
available on beneficial terms, and may not be available at all. If a successful
infringement claim is brought against us and we fail to license the infringed or
similar technology, our business could be materially adversely affected.
Our business significantly benefits from strategic relationships and there can
be no assurance that such relationships will continue in the future
Our business and strategy relies to a significant extent on our
strategic relationships with other companies. There is no assurance that we will
be able to maintain or develop any of these relationships or to replace them in
the event any of these relationships are terminated. In addition, any failure to
renew or extend any licenses between us and any third party may adversely affect
our business.
Because our market is new and emerging, we cannot accurately predict its future
growth rate or its ultimate size, and widespread acceptance of our products is
uncertain
The market for server-based software, which enables programs to be
accessed and run with minimal memory resident on a desktop computer or remote
user device, still is emerging, and we cannot assure you that our products will
receive broad-based market acceptance or that this market will continue to grow.
Additionally, we cannot accurately predict our market's future growth rate or
its ultimate size. Even if server-based software products achieve market
acceptance and the market for these products grows, we cannot assure you that we
will have a significant share of that market. If we fail to achieve a
significant share of the server-based market or if such market does not grow as
anticipated, our business, results of operations and financial condition may be
adversely affected.
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We rely on indirect distribution channels for our products and may not be able
to retain existing reseller relationships or to develop new reseller
relationships
Our products primarily are sold through several distribution channels.
An integral part of our strategy is to strengthen our relationships with
resellers such as value-added resellers, distributors, OEMs, systems integrators
and other vendors to encourage these parties to recommend or distribute our
products and to add resellers both domestically and internationally. We
currently invest in and intend to continue to invest significant resources to
expand our sales and marketing capabilities. We cannot assure you that we will
be able to attract and/or retain resellers to market our products effectively.
Our inability to attract resellers and the loss of any current reseller
relationships could have a material adverse effect on our business, results of
operations and financial condition. Additionally, we cannot assure you that
resellers will devote enough resources to provide effective sales and marketing
support to our products.
The bankruptcy on November 15, 1991 of a predecessor company may expose us to
creditors' claim of up to $2.23 million and interest, if any
On November 15, 1991, our predecessor, GraphOn-CA, filed for
reorganization under Chapter 11 of the United States Bankruptcy Code and, later
submitted a Debtor's Proposed Amended Plan of Reorganization. The plan was
confirmed by order of the bankruptcy court on July 11, 1994 and the court
established a plan of payment for the benefit of our creditors. Under the
bankruptcy court order, we established a disbursement account into which 50% of
the ongoing terminal royalties we receive from OEMs with whom we had a current
relationship must be deposited to pay named creditors. For all but one unsecured
creditor, payments from the disbursement account were ordered to continue up to
the earlier of:
. the limit of our liability to each unsecured creditor; or
. through the year 2000.
However, the largest unsecured creditor's claim, which currently totals
approximately $964,000, must be paid from available funds, if any, in the
disbursement account until such amount is fully paid. Our total remaining
liability under the bankruptcy, as of September 30, 2000, is limited to the
lesser of:
. approximately $2,230,000; or
. 50% of future ongoing terminal royalties we received from the
OEMs.
To date, only royalties received pursuant to some of our license
agreements existing at the time of the bankruptcy have been deposited into the
disbursement account, and we have not deposited into such account or paid
creditors out of royalties received or currently received on our subsequently
developed and licensed server-based technology. We believe that our royalty
payment obligations under the bankruptcy court order relate only to licenses in
place as of July 11, 1994, and no payments to creditors have been made since
November 14, 1997. We cannot assure you that a court will not interpret our
obligation to include payments to the disbursement account from royalties earned
from subsequent licenses of the server-based technology or licenses that we
secure in the future, or that our current technology will not be deemed
derivative of our technology existing at July 11, 1994. Consequently, we cannot
assure you that we will not be required to repay creditors referenced in the
bankruptcy proceedings the full amount of our liability, which is approximately
$2,230,000, and interest on any payments that a court deems to be owed based
upon a ruling that our interpretation is wrong. In addition, we cannot guarantee
you that a creditor will not assert a claim for payment out of the royalties
from subsequent licenses of the server-based technology. Such claims could be
costly and time-consuming for us. If any of
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these events takes place, it could have a material adverse effect on our
business, financial condition and results of operations.
Our failure to manage expanding operations could adversely affect us.
To exploit the emerging server-based software market, we must rapidly
execute our business strategy and further develop products while managing our
anticipated growth in operations. To manage our growth, we must:
. continue to implement and improve our operational, financial and
management information systems;
. hire and train additional qualified personnel;
. continue to expand and upgrade core technologies; and
. effectively manage multiple relationships with various licensees,
consultants, strategic and technological partners and other third
parties.
We cannot assure you that our systems, procedures, personnel or
controls will be adequate to support our operations or that management will be
able to execute strategies rapidly enough to exploit the market for our products
and services. Our failure to manage growth effectively or execute strategies
rapidly could have a material adverse effect on our business, financial
condition and results of operations.
Competition for key management and other personnel in our industry is intense,
and we may not be successful in attracting and retaining these personnel.
Our success and business strategy is dependent in large part on our
ability to attract and retain key management and other personnel. Such
individuals are in high demand and often have competing employment offers. In
particular, our success depends on our ability to retain the services of Mr.
Walter Keller, our President and Chief Executive Officer, and Ms. Robin Ford,
our Executive Vice President of Marketing and Sales. We have entered into
employment agreements with these individuals that each contain non-competition
and confidentiality covenants. We currently anticipate the need to attract
additional sales, marketing, financial and software engineer personnel in the
near future. Competition for such personnel in the computer software and
services industry is intense, and therefore, we cannot assure you we will be
able to attract or retain such personnel. The loss of the services of one or
more members of our management group or the inability to retain or hire
additional personnel as needed may have a material adverse effect on our
business.
The market in which we participate is highly competitive and has more
established competitors.
The market we participate in is intensely competitive, rapidly evolving
and subject to technological changes. We expect competition to increase as other
companies introduce additional competitive products. In order to compete
effectively, we must continually develop and market new and enhanced products
and market those products at competitive prices. As markets for our products
continue to develop, additional companies, including companies in the computer
hardware, software and networking industries with significant market presence,
may enter the markets in which we compete and further intensify competition. A
number of our current and potential competitors have longer operating histories,
greater name recognition and significantly greater financial, sales, technical,
marketing and other resources than we do. We cannot assure you that our
competitors will not develop and market competitive products that will offer
superior price or performance features or that new competitors will not enter
our markets and offer such products. We believe that we will need to invest
increasing financial
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resources in research and development to remain competitive in the future. Such
financial resources may not be available to us at the time or times that we need
them or upon terms acceptable to us. We cannot assure you that we will be able
to establish and maintain a significant market position in the face of our
competition and our failure to do so would adversely affect our business.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements including
statements regarding, among other items, business strategy, growth strategy and
anticipated trends in our business, which are made pursuant to the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995. The words
"believe," "expect" and "anticipate" and similar expressions identify
forward-looking statements, which speak only as of the date the statement is
made. These forward-looking statements are based largely on our expectations and
are subject to a number of risks and uncertainties, some of which cannot be
predicted or quantified and are beyond our control. Future events and actual
results could differ materially from those set forth in, contemplated by, or
underlying the forward-looking statements. Statements in this prospectus,
including those set forth in "Risk Factors," describe factors, among others,
that could contribute to or cause such differences. In light of these risks and
uncertainties, there can be no assurance that the forward-looking information
contained in this prospectus will in fact transpire or prove to be accurate.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock
offered by the selling stockholders. If all of the warrants, which relate to the
common stock being offered by the selling stockholders, are exercised, we will
receive gross proceeds of $1,575,000. We intend to use such proceeds for working
capital and other general corporate purposes.
7
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SELLING STOCKHOLDERS
This prospectus relates to our registration, for the account of the
selling stockholders, of an aggregate of 300,000 shares of our common stock
underlying certain of our warrants, pursuant to registration rights granted by
us to the selling stockholders.
We believe, based on information supplied by the following persons,
that except as noted, the persons named in this table have sole voting and
investment power with respect to all shares of common stock which they
beneficially own. The last column in this table assumes the sale of all of our
shares offered by this prospectus.
<TABLE>
<CAPTION>
Common Stock
Shares Beneficially Offered By
Owned Prior To Selling Shares Beneficially
Offering Stockholder Owned After Offering
--------------------- -------------- ------------------------
Names of
Selling Stockholders Number Number Number Percent
------------------------------------- --------------------- -------------- ---------- -----------
<S> <C> <C> <C> <C>
EarlyBirdCapital, Inc........... 142,500 142,500 -0- -0-
Denis Frelinghuysen............. 28,402 28,402 -0- -0-
Wayne Brannen................... 28,402 28,402 -0- -0-
Anthony Stoss................... 57,783 57,783 -0- -0-
Steve Levene.................... 15,670 15,670 -0- -0-
David Nussbaum.................. 8,325 8,325 -0- -0-
Robert Gladstone................ 1,959 1,959 -0- -0-
Dave Karlin..................... 1,959 1,959 -0- -0-
Graubard Mollen & Miller........ 15,000 15,000 -0- -0-
</TABLE>
The sale of the selling stockholders' shares may be effected from time
to time in transactions, which may include block transactions by or for the
account of the selling stockholders, in the NASDAQ National Market or in
negotiated transactions, or through the writing of options on the selling
stockholders' shares, a combination of these methods of sale, or otherwise.
Sales may be made at fixed prices which may be changed, at market prices
prevailing at the time of sale, or at negotiated prices.
The selling stockholders may effect the transactions by selling their
shares directly to purchasers, through broker-dealers acting as agents for the
selling stockholders, or to broker-dealers who may purchase shares as principals
and thereafter sell the selling stockholders' shares from time to time in The
Nasdaq National Market, in negotiated transactions, or otherwise. In effecting
sales, brokers and dealers engaged by the selling stockholders may arrange for
other broker-dealers to participate in the resales. The selling stockholders may
enter into hedging transactions with broker-dealers, and in connection with
these transactions, broker-dealers may engage in short sales of the shares. The
selling stockholders may also sell shares short and deliver these shares to
close out their short positions. Selling stockholders may also enter into option
or other transactions with broker-dealers that involve the delivery of these
shares to the broker-dealers, who may then resell or otherwise transfer such
shares. A selling stockholder may also pledge these shares to a broker-dealer
who, upon a default, may sell or otherwise transfer these shares.
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These broker-dealers, if any, may receive compensation in the form of
discounts, concessions or commissions from the selling stockholders and/or the
purchaser for whom such broker-dealers may act as agents or to whom they may
sell as principals or both, which compensation as to a particular broker-dealer
may be in excess of customary commissions.
The selling stockholders and broker-dealers, if any, acting in
connection with these sales might be deemed to be "underwriters" within the
meaning of section 2(11) of the Securities Act. Any commission they receive and
any profit upon the resale of the securities might be deemed to be underwriting
discounts and commissions under the Securities Act.
We have advised the selling stockholders that during such time as they
may be engaged in a distribution of the common stock covered by this prospectus
they are required to comply with Regulation M promulgated under the Securities
Exchange Act. With certain exceptions, Regulation M precludes any selling
stockholder, any affiliated purchasers, and any broker-dealer or other person
who participates in such distribution from bidding for or purchasing, or
attempting to induce any person to bid for or purchase any security which is the
subject of the distribution until the entire distribution is complete.
Regulation M also prohibits any bids or purchases made in order to stabilize the
price of a security in connection with the distribution of that security. All of
the foregoing may affect the marketability of our common stock.
Sales of any shares of common stock by the selling stockholders may
depress the price of the common stock in any market that may develop for the
common stock.
Any securities covered by this prospectus that qualify for sale
pursuant to SEC Rule 144 under the Securities Act may be sold under that Rule
rather than pursuant to this prospectus.
There can be no assurance that the selling stockholders will sell any
or all of the shares of common stock covered by this prospectus.
LEGAL MATTERS
The validity of the shares of our common stock covered by this
prospectus has been passed upon by Sonnenschein Nath & Rosenthal, New York, New
York.
EXPERTS
The consolidated financial statements and the related financial
statement schedules incorporated in this prospectus by reference have been
audited by BDO Seidman, LLP, independent certified public accountants, to the
extent and for the periods set forth in their report, and are incorporated
herein by reference in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the Securities
and Exchange Commission relating to the common stock offered hereby. This
prospectus does not contain all of the
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information set forth in the registration statement and the exhibits and
schedules to the registration statement. Statements contained in this prospectus
as to the contents of any contract or other document referred to are not
necessarily complete and in each instance we refer you to the copy of the
contract or other document filed as an exhibit to the registration statement,
each such statement being qualified in all respects by such reference.
For further information with respect to Graphon Corporation and the
common stock offered by this prospectus, we refer you to the registration
statement, exhibits and schedules. A copy of the registration statement may be
inspected by anyone without charge at the public reference facilities maintained
by the SEC in Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; the
Chicago Regional Office, Suite 1400, 500 West Madison Street, Citicorp Center,
Chicago, Illinois 60661; and the New York Regional Office, Suite 1300, 7 World
Trade Center, New York, New York 10048. Copies of all or any part of the
registration statement may be obtained from the Public Reference Section of the
SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, upon payment of the
prescribed fees. The public may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. The registration
statement is also available through the SEC's Web site at the following address:
http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus and information we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made by us with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934 until the sale of all of the shares of common stock that are part of this
offering. The documents we are incorporating by reference are as follows:
. our Annual Report on Form 10-K for the year ended December 31,
1999;
. our Quarterly Reports on Form 10-Q, as amended, for the quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000;
. our Current Report on Form 8-K dated April 6, 2000;
. our most recent Proxy Statement, filed on May 1, 2000; and
. the description of our common stock contained in our registration
statement on Form 8-A, including any amendments or reports filed
for the purpose of updating that description.
Any statement contained in a document that is incorporated by reference
will be modified or superseded for all purposes to the extent that a statement
contained in this prospectus (or in any other document that is subsequently
filed with the SEC and incorporated by reference) modifies or is contrary to
that previous statement. Any statement so modified or superseded will not be
deemed a part of this prospectus except as so modified or superceded.
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You may request a copy of these filings at no cost by writing or
telephoning our investor relations department at the following address and
number:
Graphon Corporation
400 Cochrane Circle
Morgan Hill, California 95037
(408) 201-7100
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth various expenses which will be incurred
in connection with this offering as it relates to this Registration Statement:
Filing Fee................................................... $ 237.60
Legal Fees and Expenses...................................... 2,500.00
Accounting Fees and Expenses................................. 3,500.00
Miscellaneous Expenses....................................... 762.40
----------
Total........................................................ $ 7,000.00
==========
Item 15. Indemnification of Directors and Officers
Except as set forth in this Item 15, there is no statute, charter
provision, by-law, contract or other arrangement under which any controlling
person, director or officer of registrant is insured or indemnified in any
manner against liability which he may incur in his capacity as such.
Article SIXTH of the Restated Certificate of Incorporation of the
registrant provides that registrant shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended, from time to
time ("DGCL"), indemnify all persons whom it may indemnify pursuant thereto.
Section 145 of the DGCL grants the registrant the power to indemnify
existing and former directors, officers, employees and agents of the registrant
who are sued or threatened to be sued because they are or were directors,
officers, employees and agents of the registrant.
Item 16. Exhibits and Financial Statement Schedules
Exhibit
Number Description of Exhibit
4.1 Amended and Restated Certificate of Incorporation of
Registrant(1)
4.2 Amended and Restated Bylaws of Registrant(1)
4.3 Form of certificate evidencing shares of common stock of
Registrant(2)
5.1 Opinion of Sonnenschein Nath & Rosenthal
23.1 Consent of BDO Seidman, LLP
II-1
<PAGE>
23.2 Consent of Sonnenschein Nath & Rosenthal (contained in
their opinion included under Exhibit 5.1)
24.1 Power of Attorney (comprises a portion of the signature
page to this Registration Statement
--------------------
(1) Incorporated by reference from Registrant's Form S-4, file number 333-
76333, filed with the SEC on April 15, 1999.
(2) Incorporated by reference from Registrant's Form S-1, file number
333-11165, filed with the SEC on August 30, 1996.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To include any material information with respect to the plan of
distribution not previously described in the registration statement or any
material change to such information in the registration statement.
(2) That for purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(3) That for the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers, and controlling persons of the registrant
pursuant to Item 15 of Part II of the registration statement, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Morgan Hill, State of California, on December 4,
2000.
GRAPHON CORPORATION
By: /s/ Walter Keller
--------------------------
Walter Keller
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints and hereby authorizes WALTER KELLER and
WILLIAM SWAIN, severally, such person's true and lawful attorneys-in-fact, with
full power of substitution or resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign on such
person's behalf, individually and in each capacity stated below, any and all
amendments, including post-effective amendments to this registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities and
on the dates stated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert Dilworth Chairman of the Board December 4, 2000
------------------------------
Robert Dilworth
/s/ Walter Keller President (Principal Executive Officer and December 4, 2000
------------------------------
Walter Keller Director)
/s/ William Swain Chief Financial Officer (Principal Financial December 4, 2000
------------------------------
William Swain and Accounting Officer)
/s/ Robin Ford Executive Vice President - Marketing and Sales December 4, 2000
------------------------------
Robin Ford and Director
/s/ August P. Klein Director December 4, 2000
------------------------------
August P. Klein
/s/ Marshall C. Phelps, Jr. Director December 4, 2000
------------------------------
Marshall C. Phelps, Jr.
</TABLE>
II-3
