Page No.
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ABOUT
THIS PROSPECTUS
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ii
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PROSPECTUS
SUMMARY
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1
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RISK
FACTORS
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3
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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4
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SELLING
STOCKHOLDERS
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6
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PLAN
OF DISTRIBUTION
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22
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DESCRIPTION
OF OUR CAPITAL STOCK
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24
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LEGAL
MATTERS
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26
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EXPERTS
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26
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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27
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WHERE
YOU CAN FIND MORE INFORMATION
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27
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·
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Protectans
are modified factors of microbes that protect cells from apoptosis, and
which therefore have a broad spectrum of potential applications. These
potential applications include both non-medical applications such as
protection from exposure to radiation, whether as a result of military or
terrorist action or as a result of a nuclear accident, as well as medical
applications such as reducing cancer treatment
toxicities.
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·
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Curaxins
are small molecules designed to kill tumor cells by simultaneously
targeting two regulators of apoptosis. Initial test results indicate that
curaxins can be effective against a number of malignancies, including
hormone-refractory prostate cancer, renal cell carcinoma (a highly fatal
form of kidney cancer), and soft-tissue
sarcoma.
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·
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our
history of operating losses and the potential for future losses, which may
lead us to not be able to continue as a going
concern;
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·
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the
adequacy of our cash balances to support our operations for specified
periods of time and the nature and level of cash
expenditures;
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·
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our
need for substantial additional financing to meet our business
objectives;
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·
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the
potential for the loss of funding from our government grants and
contracts;
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·
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the
risks inherent in the early stages of drug development and in conducting
clinical trials;
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·
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our
ability to obtain regulatory approval in a timely manner or at
all;
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·
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our
collaborative relationships and the financial risks related
thereto;
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·
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the
market opportunities for our drug candidates as well as our ability to
take advantage of those opportunities and our ability to successfully and
timely develop, market and commercialize new
products;
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·
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our
ability to comply with our obligations under license
agreements;
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·
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the
potential for significant product liability claims;
and
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·
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our
ability to comply with various safety, environmental and other
governmental regulations.
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·
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the
acquisition by OTA LLC of (i) Series B Warrants to purchase 40,000 shares
of common stock from Robert Schacter, (ii) Series B Warrants to purchase
46,326 shares of common stock from Sam Fendic, (iii) Series B Warrants to
purchase 101,077 shares of common stock from Nathan Low, and (iv) Series B
Warrants to purchase 6,919 shares of common stock from Jewish Communal
Fund-Bone Marrow Testing Fund #3761;
and
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·
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the
contribution by Hudson Bay Fund L.P. of Series B Warrants to purchase
33,294 shares of common stock to Hudson Bay Overseas Fund Ltd., which was
renamed as Hudson Bay Master Fund
Ltd.
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Number of Shares Beneficially
Owned Before the Offering
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Maximum
Number of
Shares Being
Offered
Hereby
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Number of Shares Beneficially
Owned After the Offering(2)
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||||||||||||||||||
Name of Selling Stockholder
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Number
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Percent(1)
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Number
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Number
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Percent(1)
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|||||||||||||||
162541 Ontario
Inc. (3)
532
Spring Gate
Blvd
Thornhill
Ontario
L4J5B7 Canada
|
5,794 | * | 5,794 | - | - | |||||||||||||||
Alfred
M. Gollomp (4)
160
Kensington Street
Brooklyn,
New York 11235
|
4,754 | * | 1,730 | 3,024 | * | |||||||||||||||
Amnon
Mandelbaum
(5)
c/o
Sunrise Securities Corp.
641
Lexington Ave., 25th Floor
New
York, New York 10022
|
379,924 | 1.37 | % | 62,930 | 316,994 | 1.15 | % | |||||||||||||
Andrew
C. Hart (6)
65
West 13th Street Apt. 5C
New
York, New York 10011
|
47,534 | * | 17,296 | 30,238 | * | |||||||||||||||
Aram
Openden (7)
2630
Burridge Circle
Twinsburg,
Ohio 44087
|
8,460 | * | 3,460 | 5,000 | * |
Bruce
Carlow (8)
71
Barnom Ave.
Plainview,
New York 11803
|
17,508 | * | 3,460 | 14,048 | * | |||||||||||||||
Bruce
J. & Sandra K.
Nielsen
Joint Revoc. Trust (9)
5510
Seven Mile Rd.
Racine,
Wisconsin 53402
|
3,460 | * | 3,460 | - | - | |||||||||||||||
Capital
Ventures International (10)
c/o
Heights Capital Management
101
California Street, Suite 3250
San
Francisco, California 94111
|
123,540 | * | 123,540 | - | - | |||||||||||||||
Daniel
J. Arbess
(11)
c/o
Perella Weinberg Partners Capital Management LP
767
Fifth Avenue, 10th
Fl.
New
York, New York 10153
|
109,326 | * | 39,780 | 69,546 | * | |||||||||||||||
David
Goodfriend (12)
23
Chelsea Drive
Livingston,
NJ 07039
|
21,513 | * | 6,993 | 14,520 | * | |||||||||||||||
David
Steinharter (13)
533
Douglas Avenue
Toronto,
Ontario M5M1H7 Canada
|
3,460 | * | 3,460 | - | - | |||||||||||||||
De
Parys Holdings Limited (14)
2
Faggots Close
Radlett,
U.K.
|
2,595 | * | 2,595 | - | - | |||||||||||||||
Diane
Schwartz (15)
23
Pheasant Run Lane
Dix
Hills, New York 11746
|
3,730 | * | 1,730 | 2,000 | * | |||||||||||||||
Douglas
Belz (16)
22
South Gillette Ave
Bayport,
NY 11705
|
6,919 | * | 6,919 | - | - | |||||||||||||||
EGATNIV,
LLC (17)
150
W. 46th Street, 6th Floor
New
York, New York 10036
|
14,922 | * | 14,922 | - | - | |||||||||||||||
Elie
Zrihen (18)
34
Ellison Ave.
Toronto,
Ontario M3H2J6
Canada
|
2,663 | * | 2,663 | - | - |
Eric
Abitbol (19)
201
East 69th Street, Apt. 60
New
York, New York 10021
|
8,097 | * | 4,522 | 3,575 | * | |||||||||||||||
Eric
Jacobs (20)
13594
S.W. 58th Ave
Miami,
Florida 33156
|
5,189 | * | 5,189 | - | - | |||||||||||||||
F.
Berdon & Co., LP (21)
222
Purchase Street, Suite #318
Rye,
New York 10580
|
468,710 | 1.68 | % | 468,710 | - | - | ||||||||||||||
Frank
Bua (22)
99
Matsunaye Drive
Medford,
NY 11763
|
1,730 | * | 1,730 | - | - | |||||||||||||||
Gary
Purcell (23)
9
Kate Court
East
Quogue, NY 11942
|
9,419 | * | 9,419 | - | - | |||||||||||||||
Gemini
Master Fund, Ltd. (24)
12220
El Camino Real, #400
San
Diego, California 92130
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66,599 | * | 66,599 | - | - | |||||||||||||||
Hudson
Bay Master Fund Ltd. (25)
120
Broadway, 40th Floor
New
York, New York 10271
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60,535 | * | 60,535 | - | - | |||||||||||||||
Ira
Openden (26)
1
Laurel Street
Jericho,
NY 11753
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17,208 | * | 3,460 | 13,748 | * | |||||||||||||||
Iroquois
Master Fund Ltd. (27)
641
Lexington Ave., 26th Floor
New
York, New York 10022
|
297,323 | 1.07 | % | 216,194 | 81,129 | * | ||||||||||||||
J.S.A.
Investments, LLC (28)
19500
Turnberry Way
Aventura,
Florida 33180
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327,837 | 1.19 | % | 115,679 | 212,158 | * | ||||||||||||||
James
& Nancy Pappas (29)
129
Barton Lane
Bayport,
New York 11705
|
3,460 | * | 3,460 | - | - | |||||||||||||||
Jeffrey
Meyerson (30)
c/o
Sunrise Securities Corp.
641
Lexington Ave., 25th Floor
New
York, New York 10022
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39,982 | * | 33,734 | 6,248 | * | |||||||||||||||
Jerold
Ladin (31)
14
Beverly Lane
Glenview,
Illinois 60025
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9,508 | * | 3,460 | 6,048 | * |
Jesselson
Grandchildren 12/18/80 Trust (32)
445
Park Avenue, Suite 1502
New
York, NY 10022
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237,666 | * | 86,478 | 151,188 | * | |||||||||||||||
OTA
LLC (33)
One
Manhattanville Road
Purchase,
NY 10577
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398,020 | 1.43 | % | 194,322 | 203,698 | * | ||||||||||||||
JGB
Capital Offshore, Ltd. (34)
c/o
JGB Management, Inc.
400
Madison Ave., Suite 80
New
York, New York 10017
|
7,721 | * | 7,721 | - | - | |||||||||||||||
JGB
Capital, LP (35)
c/o
JGB Management, Inc.
400
Madison Ave., Suite 80
New
York, New York 10017
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78,164 | * | 23,164 | 55,000 | * | |||||||||||||||
JMG
Capital Partners, LP (36)
11601
Wilshire Blvd., Suite 2180
Los
Angeles, California 90025
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242,137 | * | 242,137 | - | - | |||||||||||||||
Kathleen
Belz (37)
23
Neel Court
Sayville,
New York 11782
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52,009 | * | 33,509 | 18,500 | * | |||||||||||||||
Laffin
Ventures Corporation (38)
c/o
Joshua Gerstin, Esq.
1499
West Palmetto Park Road, Suite 412
Boca
Raton, Florida 33486
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65,268 | * | 65,268 | - | - | |||||||||||||||
Lorin
Wels (39)
133
Lakeview Dr.
Old
Tappan, NJ 07675
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260,380 | * | 8,648 | 251,732 | * | |||||||||||||||
Marc
Rubin (40)
2634
Oakbrook Drive
Weston,
Florida 33332
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1,730 | * | 1,730 | - | - | |||||||||||||||
Marilyn
S. Adler (41)
888
Park Ave., Apt. 8A
New
York, New York 10021
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3,460 | * | 3,460 | - | - | |||||||||||||||
Melchior
Ancona (42)
330
Crown Ave
Staten
Island, New York 10312
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3,730 | * | 1,730 | 2,000 | * | |||||||||||||||
Michael
and Irene Alter (43)
143
Shrub Hollow Road
Roslyn,
New York 11576
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13,508 | * | 7,460 | 6,048 | * | |||||||||||||||
Nathan
Halequa (44)
6
Grace Avenue
Great
Neck, New York 11021
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7,460 | * | 3,460 | 4,000 | * |
North
Pole Capital Master Fund (45)
372
Bay St., 21st
Fl
Toronto,
Ontario M5H 2W9
Canada
|
47,563 | * | 47,563 | - | - | |||||||||||||||
Peter
M. Yu (46)
29
E. 64th Street, Apt. 11A
New
York, New York 10021
|
12,353 | * | 12,353 | - | - | |||||||||||||||
Peter
Weprin (47)
225
Fifth Ave, Apt 11K
New
York, New York 10010
|
14,549 | * | 4,466 | 10,083 | * | |||||||||||||||
Portside
Growth and Opportunity Fund (48)
c/o
Ramius LLC
599
Lexington Ave, 20th
Fl
New
York, New York 10022
|
61,399 | * | 61,399 | - | - | |||||||||||||||
PR
Diamonds Inc. (49)
580
5th Ave., Suite 1203
New
York, New York 10036
|
9,508 | * | 3,460 | 6,048 | * | |||||||||||||||
Richard
Barber (50)
3405
Howell St. #22
Dallas,
TX 75204
|
3,460 | * | 3,460 | - | - | |||||||||||||||
Richard
Settducati (51)
20
Harvard Drive
Hampton
Bays, New York 11946
|
8,160 | * | 3,460 | 4,700 | * | |||||||||||||||
Robert
Baffa (52)
116
Alden Drive
Port
Jefferson, New York 11777
|
4,754 | * | 1,730 | 3,024 | * | |||||||||||||||
Robert
Fuchs (53)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, NY 10022
|
3,795 | * | 3,573 | 222 | * | |||||||||||||||
Robert
H. Cohen (54)
155
Garth Rd
Scarsdale,
New York 10583
|
418,913 | 1.50 | % | 61,770 | 357,143 | 1.28 | % | |||||||||||||
Robert
Schacter (55)
c/o
Reedland Capital LP
30
Sunnyside Avenue
Mill
Valley, CA 94941
|
45,722 | * | 45,722 | - | - |
Rock
Associates (56)
41
Winged Foot Drive
Larchmont,
New York 10538
|
13,054 | * | 13,054 | - | - | |||||||||||||||
Ron
Weissberg (57)
7
Hamitnahalim Street
Savion
Ganey Yehuda
56905
Israel
|
71,300 | * | 25,944 | 45,356 | * | |||||||||||||||
Ruth
Low (58)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, NY 10022
|
86,478 | * | 86,478 | - | - | |||||||||||||||
Samuel
Berger (59)
c/o
Sunrise Securities Corp.
641
Lexington Ave., 25th Floor
New
York, New York 10022
|
60,403 | * | 12,803 | 47,600 | * | |||||||||||||||
SDS
Capital Group SPC, Ltd. (60)
c/o
SDS Management, LLC
53
Forest Avenue, Suite 201
Old
Greenwich, Connecticut 06870
|
25,944 | * | 25,944 | - | - | |||||||||||||||
Serafino
Barone (61)
39
Summit Rd
Sparta,
New Jersey 07871
|
3,460 | * | 3,460 | - | - | |||||||||||||||
Serge
Moyal (62)
532
Spring Gate Blvd
Thornhill,
ON L4J5B7
|
3,620 | * | 2,595 | 1,025 | * | |||||||||||||||
SF
Capital Partners Ltd. (63)
c/o
Stark Offshore Management LLC
3600
South Lake Drive
St.
Francis, Wisconsin 53235
|
627,572 | 2.26 | % | 627,572 | - | - | ||||||||||||||
Starwood
Group, L.P. (64)
150
Bears Club Drive
Jupiter,
Florida 33477
|
216,399 | * | 61,399 | 155,000 | * | |||||||||||||||
Steven Diamond
(65)
64Prescott
Street
Lido
Beach, New York 11561
|
3,730 | * | 3,730 | - | - | |||||||||||||||
Steven
H. Lehmann (66)
30
Spruce Street
Garden
City, New York 11530.
|
13,837 | * | 13,837 | - | - | |||||||||||||||
Sunrise
Equity Partners, LP (67)
641
Lexington Ave., 25th Floor
New
York, New York 10022
|
518,865 | 1.85 | % | 518,865 | - | - |
Sunrise
Securities Corp. (68)
641
Lexington Ave., 25th Floor
New
York, New York 10022
|
128,269 | * | 45,119 | 83,150 | * | |||||||||||||||
MAZ
Partners L.P. (formerly TCMP3 Partners) (69)
7
Century Drive, Suite 201
Parsippany,
New Jersey 07054
|
550,160 | 1.98 | % | 174,685 | 375,475 | 1.36 | % | |||||||||||||
Thomas
Griesel (70)
115
Meriam Dr.
San
Rafael, CA 94903
|
21,430 | * | 21,430 | - | - | |||||||||||||||
Thomas
Laundrie (71)
22
Raymond Court
Garden
City, NY 11530
|
4,230 | * | 4,230 | - | - | |||||||||||||||
Uri
Rosin (72)
145
Cooper Drive
Great
Neck, New York 11023
|
55,944 | * | 55,944 | - | - | |||||||||||||||
Warrant
Strategies Fund LLC(73)
12
E. 52nd
St, 7th
Fl
New
York, NY 10022
|
465,509 | 1.67 | % | 465,509 | - | - | ||||||||||||||
William
Schmidl (74)
4027
Ramsgate
San
Antonio, Texas 78230
|
37,296 | * | 37,296 | - | - | |||||||||||||||
Perella
Weinberg Partners Xerion Master Fund Ltd. (75)
c/o
Perella Weinberg Partners Capital Management LP
767
Fifth Avenue, 10th
Fl.
New
York, New York 10153
|
332,732 | 1.21 | % | 121,069 | 211,663 | * | ||||||||||||||
Jay
and Mona Balkan (76)
283
Carriage House Dr.
Jericho,
NY 11753
|
5,250 | * | 5,250 | - | - | |||||||||||||||
Martin
Finnerty (77)
99
Bedell Ave.
Hempstead,
NY 11550
|
1,500 | * | 1,500 | - | - |
*
|
Less
than 1% of outstanding shares.
|
(1)
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Based
on 27,459,062 shares of our common stock outstanding as of November 19,
2010 .
|
(2)
|
We
do not know when or in what amounts the selling stockholders may offer
common stock for sale. The stockholders may not sell any or all of the
shares of common stock offered by this prospectus. Because the
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 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
stockholders.
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(3)
|
Serge
Moyal exercises voting and dispositive control over these shares. Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 5,794 shares of common
stock.
|
(4)
|
Shares
of common stock owned before the offering include 3,024 shares of common
stock and a Series B Warrant exercisable for 1,730 shares of common
stock.
|
(5)
|
Mr.
Mandelbaum is a managing member of Level Counter LLC, the general partner
of Sunrise Equity Partners, LP, which is an affiliate of Sunrise
Securities Corp., a registered broker-dealer. Mr. Mandelbaum is also an
employee of Sunrise Securities
Corp.
|
(6)
|
Shares
of common stock owned before the offering include 30,238 shares of common
stock and a Series B Warrant exercisable for 17,296 shares of common
stock.
|
(7)
|
Shares
of common stock owned before the offering include 5,000 shares of common
stock and a Series B Warrant exercisable for 3,460 shares of common
stock.
|
(8)
|
Shares
of common stock owned before the offering include 14,048 shares of common
stock and a Series B Warrant exercisable for 3,460 shares of common
stock.
|
(9)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 3,460 shares of common
stock.
|
(10)
|
Heights
Capital Management, Inc., the authorized agent of Capital Ventures
International ("CVI"), has discretionary authority to vote and dispose of
the shares held by CVI and may be deemed to be the beneficial owner of
these shares. Martin Kobinger, in his capacity as Investment Manager of
Heights Capital Management, Inc., may also be deemed to have investment
discretion and voting power over the shares held by CVI. Mr. Kobinger
disclaims any such beneficial ownership of the shares. Shares of
common stock owned before the offering include a Series B Warrant
exercisable for 123,540 shares of common stock. CVI is an affiliate of a
registered broker-dealer. CVI acquired the shares offered hereby, and the
Series B Warrants that may be exercised for shares covered by this
prospectus from time to time, in the ordinary course of business. At the
time such securities were acquired, CVI had no agreements or
understandings, directly or indirectly, with any person to distribute the
securities.
|
(11)
|
Shares
of common stock owned before the offering include 69,546 shares of common
stock and a Series B Warrant exercisable for 39,780 shares of common
stock. Daniel J. Arbess exercises voting and dispositive control over
shares owned by Perella Weinberg Partners Xerion Master Fund Ltd., which
shares are not included here but rather are set forth separately under
Perella Weinberg Partners Xerion Master Fund Ltd.and described in the
accompanying footnote 78 .
|
(12)
|
Shares
of common stock owned before the offering also include a Series A Warrant
exercisable for 2,965 shares of common stock, a Series B Warrant
exercisable for 6,993 shares of common stock, and a Series C Warrant
exercisable for 11,555 shares of common
stock.
|
(13)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 3,460 shares of common
stock.
|
(14)
|
Joseph
Dennis Toff exercises voting and dispositive control over these
shares. Shares of common stock owned before the offering include a
Series B Warrant exercisable for 2,595 shares of common
stock.
|
(15)
|
Shares
of common stock owned before the offering include 2,000 shares of common
stock and a Series B Warrant exercisable for 1,730 shares of common
stock.
|
(16)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 6,919 shares of common
stock.
|
(17)
|
Seth
Farbman and Shai Stern exercise voting and dispositive control over these
shares. Shares of common stock owned before the offering include
8,002 shares of common stock and a Series B Warrant exercisable for 6,920
shares of common stock.
|
(18)
|
Shares
of common stock owned before the offering include 1,428 shares of common
stock and a Series B Warrant exercisable for 1,235 shares of common
stock.
|
(19)
|
Shares
of common stock owned before the offering include 2,904 shares of common
stock, a Series A Warrant exercisable for 282 shares of common stock, a
Series B Warrant exercisable for 4,522 shares of common stock, and a
Series C Warrant exercisable for 389 shares of common
stock. Mr. Abitbol is an employee of Sunrise Securities Corp.,
a registered broker-dealer.
|
(20)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 5,189 shares of common
stock.
|
(21)
|
Frederick
Berdon, Managing Partner of F. Berdon & Co., LP, exercises voting and
dispositive control over these shares. Shares of common
stock owned before the offering include a Series B Warrant exercisable for
468,710 shares of common
stock.
|
(22)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 1,730 shares of common stock. Mr. Bua is an affiliate of a
registered broker dealer. Mr. Bua acquired the shares offered hereby, and
the Series B Warrants that may be exercised for shares covered by this
prospectus from time to time, in the ordinary course of business. At the
time such securities were acquired, Mr. Bua had no agreements or
understandings, directly or indirectly, with any person to distribute the
securities.
|
(23)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 9,419 shares of common
stock.
|
(24)
|
Gemini
Strategies, LLC is the investment manager of Gemini Master Fund, Ltd., and
Steven Winters is the sole managing member of Gemini Strategies, LLC. Each
of Gemini Strategies, LLC and Steven Winters expressly disclaims any
equitable or beneficial ownership of such securities. Shares of
common stock owned before the offering include 35,714 shares of common
stock and a Series B Warrant exercisable for 30,885 shares of common
stock.
|
(25)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 60,535 shares of common stock. Hudson Bay Capital
Management, L.P., the investment manager of Hudson Bay Master Fund Ltd.,
has voting and investment power over these securities. Sander Gerber is
the managing member of Hudson Bay Capital GP LLC, which is the general
partner of Hudson Bay Capital Management, L.P. Sander Gerber disclaims
beneficial ownership over these securities.
|
(26)
|
Shares
of common stock owned before the offering include 13,748 shares of common
stock and a Series B Warrant exercisable for 3,460 shares of common
stock.
|
(27)
|
Shares
of common stock owned before the offering include 9,700 shares of common
stock, a Series B Warrant exercisable for 216,194 shares of common stock,
and a Series D Warrant exercisable for 71,429 shares of common stock.
Iroquois Capital Management L.L.C. (“Iroquois Capital”) is the investment
manager of Iroquois Master Fund, Ltd. (“IMF”). Consequently, Iroquois
Capital has voting control and investment discretion over securities held
by IMF. As managing members of Iroquois Capital, Joshua Silverman and
Richard Abbe make voting and investment decisions on behalf of Iroquois
Capital in its capacity as investment manager to IMF. As a result of the
foregoing, Mr. Silverman and Mr. Abbe may be deemed to have beneficial
ownership (as determined under Section 13(d) of the Securities Exchange
Act of 1934, as amended) of the securities held by IMF. Notwithstanding
the foregoing, Mr. Silverman and Mr. Abbe disclaim such beneficial
ownership.
|
(28)
|
J.A. Meyerson exercises voting
and dispositive control over these shares. Shares of common stock owned
before the offering include 153,041 shares of common stock, a Series B
Warrant exercisable for 115,679 shares of common stock, and a
Series D Warrant exercisable for 35,715 shares of common
stock.
|
(29)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 3,460 shares of common
stock.
|
(30)
|
Shares
of common stock owned before the offering include a Series A Warrant
exercisable for 649 shares of common stock, a Series B Warrant exercisable
for 33,734 shares of common stock, and a Series C Warrant exercisable for
5,599 shares of common stock. Mr. Meyerson is an employee of
Sunrise Securities Corp., a registered broker-dealer. Mr. Meyerson is an
affiliate of a registered broker dealer. Mr. Meyerson acquired the shares
offered hereby, and the Series B Warrants that may be exercised for shares
covered by this prospectus from time to time, in the ordinary course of
business. At the time such securities were acquired, Mr. Meyerson had no
agreements or understandings, directly or indirectly, with any person to
distribute the securities.
|
(31)
|
Shares
of common stock owned before the offering include 6,048 shares of common
stock and a Series B Warrant exercisable for 3,460 shares of common
stock.
|
(32)
|
Michael
G. Jesselson, Benjamin J. Jesselson, Lucy Lang, and Claire Strauss
exercise voting and dispositive control over these shares. Shares of
common stock owned before the offering include 151,188 shares of common
stock and a Series B Warrant exercisable for 86,478 shares of common
stock.
|
(33)
|
Shares
of common stock owned before the offering include Series B Warrants
exercisable for 194,322 shares of common stock and Series C Warrants
exercisable for 203,698 shares of common stock. Ira M. Leventhal, a senior
managing director of the selling stockholder, exercises voting and
investment power over these shares. OTA LLC is a registered broker-dealer.
As a registered broker-dealer, OTA LLC is an “underwriter” within the
meaning of the Securities Act for the purposes of this offering, and any
commissions paid, or any discounts or concessions allowed, to OTA LLC will
be deemed to be underwriting commissions or discounts under the Securities
Act.
|
(34)
|
The
general partner of the investment advisor to JGB Capital Offshore, Ltd. is
JGB Management Inc. JGB Management Inc. has voting control and investment
discretion over securities held by JGB Capital Offshore, Ltd. The
President of JGB Management Inc. is Brett Cohen. Brett Cohen disclaims
beneficial ownership of the securities held by JGB Capital Offshore, Ltd.
Shares of common stock owned before the offering include a Series B
Warrant exercisable for 7,721 shares of common
stock.
|
(35)
|
The
general partner of the investment advisor of JGB Capital L.P. is JGB
Management Inc. JGB Management Inc. has voting control and investment
discretion over securities held by JGB Capital L.P. The President of JGB
Management Inc. is Brett Cohen. Brett Cohen disclaims beneficial ownership
of the securities held by JGB Capital L.P. Shares of common stock owned
before the offering include a Series A Warrant exercisable for 55,000
shares of common stock and a Series B Warrant exercisable for 23,164
shares of common stock.
|
(36)
|
JMG
Capital Partners, LP (“JMG Partners”) is a California limited partnership.
Its general partner is JMG Capital Management, LLC (the “Manager”), a
Delaware limited liability company and an investment adviser that has
voting and dispositive power over JMG Partners’ investments, including the
Registrable Securities. The equity interests of the Manager are owned by
JMG Capital Management, Inc. (“JMG Capital”), a California corporation.
Jonathan M. Glaser is the Executive Officer and Director of JMG Capital
and has sole investment discretion over JMG Partners’ portfolio
holdings. Shares of common stock owned before the offering include a
Series B Warrant exercisable for 242,137 shares of common
stock.
|
(37)
|
Shares
of common stock owned before the offering include 18,500 shares of common
stock and a Series B Warrant exercisable for 33,509 shares of common
stock.
|
(38)
|
Mark
Tompkins exercises voting and dispositive control over these
shares. Shares of common stock owned before the offering
include 35,000 shares of common stock and a Series B Warrant exercisable
for 30,268 shares of common stock.
|
(39)
|
Shares
of common stock owned before the offering include 179,053 shares of common
stock, a Series B Warrant exercisable for 8,648 shares of common stock,
and a Series D Warrant exercisable for 72,679 shares of common
stock.
|
(40)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 1,730 shares of common
stock.
|
(41)
|
Marilyn
S. Adler is a managing member of Level Counter LLC, the general partner of
Sunrise Equity Partners, LP, which is an affiliate of Sunrise Securities
Corp. Ms. Adler is otherwise unaffiliated with Sunrise Securities
Corp.
|
(42)
|
Shares
of common stock owned before the offering include 2,000 shares of common
stock and a Series B Warrant exercisable for 1,730 shares of common stock.
Mr. Ancona recently passed away and his securities are in the process of
being transferred to Vincenza Ancona, his
widow.
|
(43)
|
Shares
of common stock owned before the offering include 6,048 shares of common
stock and a Series B Warrant exercisable for 7,460 shares of common
stock.
|
(44)
|
Shares
of common stock owned before the offering include 4,000 shares of common
stock and a Series B Warrant exercisable for 3,460 shares of common
stock.
|
(45)
|
Paul
Sabourin (Chairman & CIO, Polar Securities Inc. (as investment adviser
for North Pole Capital Master Fund)), Robyn Schultz (Vice President, Polar
Securities Inc. (as investment adviser for North Pole Capital Master
Fund)), Herman Gill (CFO, Polar Securities Inc. (as investment adviser for
North Pole Capital Master Fund)), Kamran Siddiqui (Trader, Polar
Securities Inc. (as investment adviser for North Pole Capital Master
Fund)), and John Paul Cahill (Trader, Polar Securities Inc. (as investment
adviser for North Pole Capital Master Fund)) exercise voting and
dispositive control over these shares, and any one of them can exercise
such control alone. Shares of common stock owned before the offering
include a Series B Warrant exercisable for 47,563 shares of common
stock.
|
(46)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 12,353 shares of common
stock.
|
(47)
|
Shares
of common stock owned before the offering include 9,805 shares of common
stock, Series B Warrants exercisable for 4,466 shares of common stock, and
a Series C Warrant exercisable for 278 shares of common
stock. Mr. Weprin is an affiliate of a registered broker
dealer. Mr. Weprin acquired the shares offered hereby, and the Series B
Warrants that may be exercised for shares covered by this prospectus from
time to time, in the ordinary course of business. At the time such
securities were acquired, Mr. Weprin had no agreements or understandings,
directly or indirectly, with any person to distribute the
securities.
|
(48)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 61,399 shares of common stock. Ramius LLC ("Ramius") is
the investment adviser of Portside Growth and Opportunity Fund
("Portside") and consequently has voting control and investment discretion
over securities held by Portside. Ramius disclaims beneficial ownership of
the shares held by Portside. Cowen Group, Inc. (“Cowen”) is the managing
member of Ramius and may be considered the beneficial owner of any
securities deemed to be beneficially owned by Ramius. Cowen disclaims
beneficial ownership of these securities. RCG Holdings LLC (“RCG
Holdings”) is a significant shareholder of Cowen and may be considered to
beneficial owner of any securities deemed beneficially owned by Cowen. RCG
Holdings disclaims beneficial ownership of these securities. C4S &
Co., L.L.C. (“C4S”) is the managing member of RCG Holdings and may be
considered the beneficial owner of any securities deemed to be
beneficially owned by RCG Holdings. C4S disclaims beneficial ownership of
these securities. Peter A. Cohen, Morgan B. Stark, Thomas W. Strauss and
Jeffrey M. Solomon are the sole managing members of C4S and may be
considered beneficial owners of any shares deemed to be beneficially owned
by C4S. Messrs. Cohen, Stark, Strauss and Solomon disclaim beneficial
ownership of these shares.
|
(49)
|
Pincus
Reisz exercises voting and dispositive control over these shares. Shares
of common stock owned before the offering include 6,048 shares of common
stock and a Series B Warrant exercisable for 3,460 shares of common
stock.
|
(50)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 3,460 shares of common stock. Mr. Barber is an affiliate
of a registered broker dealer. Mr. Barber acquired the shares offered
hereby, and the Series B Warrants that may be exercised for shares covered
by this prospectus from time to time, in the ordinary course of business.
At the time such securities were acquired, Mr. Barber had no agreements or
understandings, directly or indirectly, with any person to distribute the
securities.
|
(51)
|
Shares
of common stock owned before the offering 4,700 shares of common stock and
a Series B Warrant exercisable for 3,460 shares of common
stock.
|
(52)
|
Shares
of common stock owned before the offering include 3,024 shares of common
stock and a Series B Warrant exercisable for 1,730 shares of common
stock.
|
(53)
|
Shares
of common stock owned before the offering include Series B Warrants
exercisable for 3,573 shares of common stock, and a Series C Warrant
exercisable for 222 shares of common stock. Mr. Fuchs is an
employee of Sunrise Securities Corp., a registered broker-dealer. Mr.
Fuchs is an affiliate of a registered broker dealer. Mr. Fuchs acquired
the shares offered hereby, and the Series B Warrants that may be exercised
for shares covered by this prospectus from time to time, in the ordinary
course of business. At the time such securities were acquired, Mr. Fuchs
had no agreements or understandings, directly or indirectly, with any
person to distribute the
securities.
|
(54)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 61,770 shares of common stock and a Series D Warrant
exercisable for 357,143 shares of common
stock.
|
(55)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 45,722 shares of common stock. Robert Schacter is an
affiliate of a registered broker dealer. Mr. Schacter acquired the shares
offered hereby, and the Series B Warrants that may be exercised for shares
covered by this prospectus from time to time, in the ordinary course of
business. At the time such securities were acquired, Mr. Schacter had no
agreements or understandings, directly or indirectly, with any person to
distribute the securities.
|
(56)
|
Stuart
Schapiro exercises voting and dispositive control over these shares.
Shares of common stock owned before the offering include 7,000 shares of
common stock and a Series B Warrant exercisable for 6,054 shares of common
stock.
|
(57)
|
Shares
of common stock owned before the offering include 45,356 shares of common
stock and a Series B Warrant exercisable for 25,944 shares of common
stock.
|
(58)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 86,478 shares of common stock. Ms. Low is an affiliate of
a registered broker dealer. Ms. Low acquired the shares offered hereby,
and the Series B Warrants that may be exercised for shares covered by this
prospectus from time to time, in the ordinary course of business. At the
time such securities were acquired, Ms. Low had no agreements or
understandings, directly or indirectly, with any person to distribute the
securities.
|
(59)
|
Shares
of common stock owned before the offering include 22,382 shares of common
stock, a Series A Warrant exercisable for 51 shares of common stock, a
Series B Warrant exercisable for 12,803 shares of common stock, and a
Series C Warrant exercisable for 25,167 shares of common stock. Mr. Berger
is an employee of Sunrise Securities Corp., a registered broker-dealer.
Mr. Berger is an affiliate of a registered broker dealer. Mr. Berger
acquired the shares offered hereby, and the Series B Warrants that may be
exercised for shares covered by this prospectus from time to time, in the
ordinary course of business. At the time such securities were acquired,
Mr. Berger had no agreements or understandings, directly or indirectly,
with any person to distribute the
securities.
|
(60)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 25,944 shares of common
stock.
|
(61)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 3,460 shares of common
stock.
|
(62)
|
Shares
of common stock owned before the offering include a Series A Warrant
exercisable for 1,025 shares of common stock and a Series B Warrant
exercisable for 2,595 shares of common
stock.
|
(63)
|
Michael
A. Roth and Brian J. Stark have voting and investment control over
securities owned by SF Capital Partners Ltd., but Messrs. Roth and Stark
disclaim beneficial ownership of such securities. Shares of common stock
owned before the offering include 321,441 shares of common stock and a
Series B Warrant exercisable for 306,131 shares of common stock. SF
Capital Partners Ltd. is an affiliate of a registered
broker-dealer.
|
(64)
|
Robert Green exercises voting and
dispositive control over these shares. Shares of common stock owned
before the offering include 155,000 shares of common stock and a Series B
Warrant exercisable for 61,399 shares of common
stock.
|
(65)
|
Shares
of common stock owned before the offering include 2,000 shares of common
stock and a Series B Warrant exercisable for 1,730 shares of common
stock.
|
(66)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 13,937 shares of common
stock.
|
(67)
|
Level
Counter LLC is the general partner of Sunrise Equity Partners, LP. The
three managing members of Level Counter LLC are Nathan Low, the sole
stockholder of Sunrise Securities Corp. and its president, Amnon
Mandelbaum, one of the Managing Directors of Investment Banking at Sunrise
Securities Corp., and Marilyn Adler, who is otherwise unaffiliated with
Sunrise Securities Corp., and a unanimous vote of all three persons is
required to dispose of the securities of Sunrise Equity Partners, LP.
Accordingly, each of such persons may be deemed to have shared beneficial
ownership of the securities owned by Sunrise Equity Partners, LP. Such
persons disclaim such beneficial
ownership.
|
(68)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 45,119 shares of common stock, and a Series C Warrant
exercisable for 83,150 shares of common stock. Shares of common stock
being offered represent compensation paid to Sunrise Securities Corp. for
its services as placement agent in the private placement of the Series B
securities. Sunrise Securities Corp. also served as a placement agent in
our private placement of Series A Preferred Stock in March 2005 and as one
of the co-managing underwriters in our initial public offering in July
2006.
|
(69)
|
Walter Schenker is the sole
principal in MAZ Capital Advisors LLC which is the general Partner in MAZ
Partners. As such, Walter Schenker exercises voting and dispositive
control over these shares. Shares of common stock owned
before the offering include 268,332 shares of common stock, Series B
Warrants exercisable for 174,685 shares of common stock, and Series D
Warrants exercisable for 107,143 shares of common
stock.
|
(70)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 21,430 shares of common stock. Thomas Griesel is an
affiliate of a registered broker dealer. Mr. Griesel acquired the shares
offered hereby, and the Series B Warrants that may be exercised for shares
covered by this prospectus from time to time, in the ordinary course of
business. At the time such securities were acquired, Mr. Griesel had no
agreements or understandings, directly or indirectly, with any person to
distribute the securities.
|
(71)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 4,230 shares of common stock. Thomas Laundrie is an
affiliate of a registered broker dealer. Mr. Laundrie acquired the shares
offered hereby, and the Series B Warrants that may be exercised for shares
covered by this prospectus from time to time, in the ordinary course of
business. At the time such securities were acquired, Mr. Laundrie had no
agreements or understandings, directly or indirectly, with any person to
distribute the securities.
|
(72)
|
Shares
of common stock owned before the offering include 30,000 shares of common
stock and a Series B Warrant exercisable for 25,944 shares of common
stock.
|
(73)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 465,509 shares of common stock. Hull Capital
Management, LLC is the investment adviser to Warrant Strategies Fund, LLC,
a single strategy hedge fund. Hull Capital Management, LLC is fully owned
and managed by J. Mitchell Hull. Mr. Hull has exclusive responsibility for
all investment decisions for the Firm and is the Portfolio Manager of
Warrant Strategies Fund, LLC.
|
(74)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 17,296 shares of common
stock.
|
(75)
|
Daniel J. Arbess exercises voting
and dispositive control over these shares. Shares of common stock
owned before the
offering include 211,663 shares of common stock and a
Series B Warrant exercisable for 121,069 shares of common
stock. Perella Weinberg Partners Xerion
Master Fund Ltd. (“Perella Weinberg”) is an affiliate of a registered
broker dealer. Perella Weinberg acquired the shares offered hereby, and
the Series B Warrants that may be exercised for shares covered by this
prospectus from time to time, in the ordinary course of business. At the
time such securities were acquired, Perella Weinberg had no agreements or
understandings, directly or indirectly, with any person to distribute the
securities.
|
(76)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 5,250 shares of common
stock.
|
(77)
|
Shares
of common stock owned before the offering include a Series B Warrant
exercisable for 1,500 shares of common
stock.
|
|
·
|
on
any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of
sale;
|
|
·
|
in
the over-the-counter market;
|
|
·
|
in
transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
|
|
·
|
through
the writing of options, whether such options are listed on an options
exchange or otherwise;
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the securities 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;
|
|
·
|
short
sales;
|
|
·
|
sales
pursuant to Rule 144;
|
|
·
|
broker-dealers
may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per
share;
|
|
·
|
a
combination of any such methods of sale;
and
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
|
·
|
prior
to the time the stockholder became an interested stockholder, the board of
directors approved either the business combination or the transaction
which resulted in the stockholder becoming an interested
stockholder;
|
|
·
|
upon
consummation of the transaction which resulted in the stockholder becoming
an interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced, other than statutorily excluded shares;
or
|
|
·
|
on
or subsequent to the time the stockholder became an interested
stockholder, the business combination is approved by the board of
directors and authorized at an annual or special meeting of stockholders
by the affirmative vote of at least 66 2/3% of the outstanding voting
stock which is not owned by the interested
stockholder.
|
|
·
|
any
person that is the owner of 15% or more of the outstanding voting stock of
the corporation, or is an affiliate or associate of the corporation and
was the owner of 15% or more of the outstanding voting stock of the
corporation at any time within three years immediately prior to the date
of determination; and
|
|
·
|
the
affiliates and associates of any such
person.
|
·
|
our
Annual Report on Form 10-K for the year ended December 31, 2009, filed
with the SEC on March 22, 2010 (including the portions of our definitive
Proxy Statement on Schedule 14A incorporated therein by
reference);
|
|
·
|
our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2010,
filed with the SEC on May 14, 2010;
|
● | our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2010, filed with the SEC on August 16, 2010; | |
● | our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2010, filed with the SEC on November 15, 2010; |
|
·
|
our
Current Report on Form 8-K, filed with the SEC on January 5,
2010;
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on February 2,
2010;
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on February 16,
2010;
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on February 26,
2010;
|
|
·
|
our
Current Report on Form 8-K/A, filed with the SEC on February 26,
2010;
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on June 9,
2010;
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on July 28,
2010;
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on September 21, 2010;
and
|
|
·
|
the
description of our common stock in Form 8-A, filed with the SEC on July
20, 2006.
|