0001001746-11-000008.txt : 20110613
0001001746-11-000008.hdr.sgml : 20110613
20110422115919
ACCESSION NUMBER: 0001001746-11-000008
CONFORMED SUBMISSION TYPE: CORRESP
PUBLIC DOCUMENT COUNT: 1
FILED AS OF DATE: 20110422
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DATARAM CORP
CENTRAL INDEX KEY: 0000027093
STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER STORAGE DEVICES [3572]
IRS NUMBER: 221831409
STATE OF INCORPORATION: NJ
FISCAL YEAR END: 0430
FILING VALUES:
FORM TYPE: CORRESP
BUSINESS ADDRESS:
STREET 1: P O BOX 7528
CITY: PRINCETON
STATE: NJ
ZIP: 08543
BUSINESS PHONE: 6097990071
MAIL ADDRESS:
STREET 1: PO BOX 7528
CITY: PRINCETON
STATE: NJ
ZIP: 08543-7528
CORRESP
1
filename1.txt
Dataram Corporation
PO Box 7528
Princeton, NJ 08543
April 22, 2011
Mark P. Shuman
Branch Chief - Legal
United States Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
Reference: SEC Comment Letter dated April 20, 2011
Re: Dataram Corporation
Registration Statement on
Form S-3 Filed March 31, 2011
File No. 333-173212
Dear Mr. Shuman:
Following is our response to the comments as listed in the above
referenced letter. Please advise if additional information is
required.
In that letter, you made two comments.
COMMENT 1
General
1. You propose a primary offering of securities yet do not appear
to satisfy the requirements of transaction requirement I.B.1 or
I.B.6 of Form S-3. Please explain in detail the transaction
requirement of Form S-3 you believe you satisfy.
RESPONSE
The registrant believes it satisfies the requirements of Instruction
I.B.6 of the eligibility requirements of Form S-3. I.B.6 allows the
Form to be used for the registration of
"[s]ecurities to be offered for cash by or on behalf of a registrant;
provided that:
(a) the aggregate market value of securities sold by or on behalf
of the registrant pursuant to this Instruction I.B.6. during the period
of 12 calendar months immediately prior to, and including, the sale is
no more than one-third of the aggregate market value of the voting and
non-voting common equity held by non-affiliates of the registrant;
(b) the registrant is not a shell company (as defined in Section
230.405 of this chapter) and has not been a shell company for at least
12 calendar months previously and if it has been a shell company at any
time previously, has filed current Form 10 information with the
Commission at least 12 calendar months previously reflecting its
status as an entity that is not a shell company; and
(c) the registrant has at least one class of common equity
securities listed and registered on a national securities exchange."
The registrant filed the S-3 as a "shelf" registration, with such
registration statement to be effective for a period of up to three
years. The registrant listed a maximum aggregate value of securities
to be offered as being $20,000,000 to provide maximum flexibility and
to avoid the additional preparation costs and filing fees had a lower
aggregate amount been initially listed and later raised. Instruction
I.B.6. does not prevent an issuer from filing a registration statement
on Form S-3 for aggregate proceeds of more than one-third of the
aggregate market value of the voting and non-voting common equity held
by non-affiliates of the issuer, it just states that a registrant
cannot sell more than one-third of the value of its public float in
any 12 calendar month period. Since the issuer does not know what the
value of its public float will be during the three year life of the
registration statement, most issuers will file a registration
statement on Form S-3 for an amount much higher than one-third of the
current value of its public float in order to provide flexibility in
the event that its public float increases in value during the three
year life of the registration statement.
The registrant understands the eligibility requirements for Form S-3
and undertakes that, so long it is subject to Instruction I.B.6. of
Form S-3, under no circumstances shall it offer securities under the
registration statement in any 12 calendar month period having an
aggregate market value greater than one-third of the aggregate market
value of the voting and non-voting common equity held by non-
affiliates of the registrant. In addition, the registrant is not a
"shell company," and it does have its common stock listed and
registered on a national securities exchange (NASDAQ).
COMMENT 2.
Item 16. Exhibits and Financial
Statement Schedules (a) Exhibits
2. Counsels' legal opinion must opine on the laws of the state
governing the indenture. Section 1.13 of the indenture appears to
indicate the laws of the State of New York will govern the
indenture, but your opinion of counsel is limited to the laws of
the State of New Jersey. Please ensure any revised legal opinion
opines on the laws of the state governing the indenture.
RESPONSE
A revised opinion, opining as to New York as well as New Jersey law,
has been filed as a revised exhibit to the amendment to the
registration statement.
ACKNOWLEDGEMENTS
The amendment to the registration statement filed by the registrant
includes a delaying amendment, as did the original filing. And the
registrant is not requesting acceleration of the effectiveness of the
registration statement at this time. Nevertheless, the registrant
acknowledges that:
should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and accuracy of the disclosure in the filing; and
the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
Sincerely,
Dataram Corporation
/s/ Mark Maddocks
_____________________________
Mark Maddocks
Vice-President, Finance
and Chief Financial Officer
cc: Michael Johnson, Division of Corporate Finance
United States Securities and Exchange Commission