0001104659-13-063232.txt : 20130813 0001104659-13-063232.hdr.sgml : 20130813 20130813152922 ACCESSION NUMBER: 0001104659-13-063232 CONFORMED SUBMISSION TYPE: SC TO-I/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20130813 DATE AS OF CHANGE: 20130813 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GRAPHON CORP/DE CENTRAL INDEX KEY: 0001021435 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 133899021 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-I/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47429 FILM NUMBER: 131032928 BUSINESS ADDRESS: STREET 1: 1901 S. BASCOM AVENUE STREET 2: SUITE 660 CITY: CAMPBELL STATE: CA ZIP: 95008 BUSINESS PHONE: 8004727466 MAIL ADDRESS: STREET 1: 1901 S. BASCOM AVENUE STREET 2: SUITE 660 CITY: CAMPBELL STATE: CA ZIP: 95008 FORMER COMPANY: FORMER CONFORMED NAME: UNITY FIRST ACQUISITION CORP DATE OF NAME CHANGE: 19960823 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GRAPHON CORP/DE CENTRAL INDEX KEY: 0001021435 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 133899021 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-I/A BUSINESS ADDRESS: STREET 1: 1901 S. BASCOM AVENUE STREET 2: SUITE 660 CITY: CAMPBELL STATE: CA ZIP: 95008 BUSINESS PHONE: 8004727466 MAIL ADDRESS: STREET 1: 1901 S. BASCOM AVENUE STREET 2: SUITE 660 CITY: CAMPBELL STATE: CA ZIP: 95008 FORMER COMPANY: FORMER CONFORMED NAME: UNITY FIRST ACQUISITION CORP DATE OF NAME CHANGE: 19960823 SC TO-I/A 1 a13-15553_6sctoia.htm SC TO-I/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE TO/A

(Amendment No. 2)

 

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

GRAPHON CORPORATION

(Name of Subject Company (Issuer) and Filing Person (Offeror))

 

 

WARRANTS TO PURCHASE COMMON STOCK

(Title of Class of Securities)

 

388707101

(CUSIP Number of Common Stock Underlying Warrants)

 

Robert L. Dixon

Interim Chief Financial Officer

1901 S. Bascom Avenue Suite 660

Campbell, California 95008

Phone: (800) 472-7466

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf
of Filing Person)

 

 

WITH COPY TO:

 

Ben Orlanski, Esq.
Matthew O’Loughlin, Esq.

Manatt, Phelps & Phillips, LLP

11355 W. Olympic Blvd

Los Angeles, California 90064

Tel: (310) 312-4000

Fax: (310) 312-4224

 

 

CALCULATION OF FILING FEE:

 

Transaction valuation(1)

 

Amount of filing fee(1)

 

$ 4,868,275

 

$664.03

 

 

(1)         Estimated for purposes of calculating the amount of the filing fee only. The calculation assumes that warrants to purchase an aggregate of 13,157,500 shares of common stock participate in the Offer to Exercise, all of which were issued in connection with the Company’s private placement that closed on September 1, 2011.  The transaction value is calculated pursuant to Rule 0-11 using $0.37 per share of common stock, which represents the average of the high and low sales price of the common stock underlying the warrants on July 2, 2013.

 

x          Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number or the Form or Schedule and the date of its filing.

 

Amount Previously Paid: $664.03

 

Filing Party: GraphOn Corporation

Form or Registration Number: 005-47429

 

Date Filed: July 8, 2013

 

o    Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

o third party tender offer subject to Rule 14d-1.

 

x   issuer tender offer subject to Rule 13e-4.

 

o going private transaction subject to Rule 13e-3.

 

o amendment to Schedule 13D under Rule 13d-2.

 

Check the following box if the filing is a final amendment reporting the results of a tender offer:  x

 

The alphabetical subsections used in the Item responses below correspond to the alphabetical subsections of the applicable items of Regulation M-A promulgated under the federal securities laws.

 

If applicable, check the appropriate box(es) below to designate the appropriate note provision(s):

 

o Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

 

o Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)

 

 

 


 

Explanatory Note

 

This Amendment No. 2 (this “Amendment No. 2”) amends and supplements the Tender Offer Statement on Schedule TO-I originally filed with the Securities and Exchange Commission (the “SEC”) on July 8, 2013 (the “Original Schedule TO”), as amended on July 17, 2013 (“Amendment No. 1” and together with the Original Schedule TO and this Amendment No. 2, the “Schedule TO”).  The Schedule TO relates to an offer by GraphOn Corporation (the “Company”) of one half of a new warrant to purchase one share of the Company’s common stock at an exercise price of $1.00 per share (the “New Warrants”) for each warrant exercised by a holder issued to investors in the Company’s private placement on September 1, 2011 and each warrant issued to the placement agent as compensation for their services in connection with such private placement (collectively, the “Existing Warrants”), upon the terms set forth in the “Offer to Exercise Warrants to Purchase Common Stock of GraphOn Corporation” dated as of July 8, 2013 filed as Exhibit (a)(1)(B) to the Original Schedule TO (as amended by Amendment No. 1, the “Offer to Exercise”).

 

This Amendment No. 2 is the final amendment to the Schedule TO and is being filed to report the results of the Offer to Exercise.  This Amendment No. 2 is intended to satisfy the reporting requirements of Rule 13e-4(c)(3) under the Securities Exchange Act of 1934, as amended.  This Amendment No. 2 amends and restates only the items of the Schedule TO that are being amended and restated hereby, and unaffected items and exhibits in the Schedule TO are not included herein. All terms used herein have the same meaning as in the Offer to Exercise.

 

Item 4.                                 TERMS OF THE TRANSACTION

 

This Amendment No. 2 amends and supplements Item 4 of this Schedule TO as follows:

 

Completion of Offer to Exercise

 

The Offer to Exercise expired at 5:00 p.m. Pacific Time on August 9, 2013. An aggregate of 305,000 Existing Warrants were tendered by their holders and exercised in connection with the Offer to Exercise resulting in gross proceeds to the Company of $64,000.   As a result of the exercises, the Company issued to the participating holders an aggregate of 305,000 shares of common stock and New Warrants to purchase an aggregate of 152,500 shares of common stock at an exercise price of $1.00 per share, with a term of five years from issuance.

 

Item 12.                          EXHIBITS.

 

The following are attached as exhibits to this Schedule TO:

 

(a)

 

(1)(A)

Letter to Holders of Existing Warrants*

 

 

 

 

 

 

(1)(B)

Offer to Exercise*

 

 

 

 

 

 

(1)(C)

Form of Election to Participate and Exercise Warrant*

 

 

 

 

 

 

(1)(D)

Form of Notice of Withdrawal*

 

 

 

 

 

 

(1)(E)

Form of New Warrant*

 

 

 

 

 

 

(1)(F)

Supplemental Company Information*

 

 

 

 

 

 

(1)(G)

New Registration Rights Agreement*

 

 

 

 

 

 

(1)(H)

Press Release dated June 19, 2013 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 19, 2013)

 

 

 

 

 

 

(1)(I)

Podcast transcript (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on July 2, 2013)

 

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(1)(J)

Supplemental Letter (and Email) to Holders of Existing Warrants*

 

 

 

 

(b)

 

Not applicable.

 

 

 

 

(d)

 

 

(A)

 

Form of Existing Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on September 8, 2011)

 

 

 

 

 

 

 

 

 

(B)

 

Allonge to Investor Warrant (incorporated by reference to Schedule B of Exhibit 10.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 24, 2013)

 

 

 

 

 

 

 

 

 

(C)

 

Registration Rights Agreement, dated September 1, 2011(incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, as filed with the SEC on September 8, 2011)

 

 

 

 

 

 

 

 

 

(D)

 

Exercise Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 24, 2013)

 

 

 

 

 

 

(g)

 

None.

 

 

 

 

 

 

 

 

 

(h)

 

None.

 

 

 

 

*              Previously filed.

 

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SIGNATURE

 

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

GRAPHON CORPORATION

 

 

 

By:

/s/ Robert L. Dixon

 

Name:

Robert L. Dixon

 

Title:

Interim Chief Financial Officer

 

 

(Principal Financial Officer)

Date: August 13, 2013

 

 

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