To: Greg Smith who wrote (5731 ) 12/2/1998 5:00:00 PM From: kolo55 Read Replies (2) | Respond to
My interpretation of S-3/A.I think you might be right: the 2.5 mil shares may not be additional to the 5.76 mil shares, but rather a restatement of the number of shares offered, reflecting a higher share price (and relatively less dilution). However, the most recent S-3A omits both a per share price and the aggregate amount of the offering. So it is not clear if the new share amount adds up to the original total of the offering. Did CC already convert some of their preferred into 1.3 (1) Beneficial ownership is determined in accordance with the Rules of the SEC and generally includes voting or investment power with respect to securities. (3) Includes warrants to purchase 52,415 shares of Common Stock at a price of $6.78 per share and 1,269,543 shares issuable upon conversion of shares of Series A Preferred Stock. Castle Creek Partners LLC as the investment advisor to CC Investments, LDC, has voting control and investment discretion over the securities held by CC Investments, LDC. Pursuant to the terms of the Series A Preferred Stock and such warrants, no holder thereof can convert or exercise any portion of such Series A Preferred Stock or the warrants if such conversion would increase such holder's beneficial ownership of Common Stock to in excess of 4.9%. Absent such limitation, the number of shares of Common stock issuable upon exercise of the warrants would have been 447,761, which, together with the shares issuable upon conversion of Series A Preferred Stock held by CC Investments, LDC, would constitute 6.4% of the outstanding shares of Common Stock. Pursuant to the regulations of the National Association of Securities Dealers, in the absence of stockholder approval, the aggregate number of shares of Common Stock issuable at a discount from market price upon conversion of the Series A Preferred Stock may not exceed 19.99% of the outstanding shares of Common Stock. Unless stockholder approval is obtained to issue Common Stock in excess of the maximum amount set forth above, the holder of the Series A Preferred Stock will not be entitled to acquire more than its proportionate share of such maximum amount. Any Series A Preferred Stock which may not be converted because of such limitation must be redeemed by the Company. The number of shares of Common Stock registered pursuant to this Registration Statement on behalf of CC Investments, LDC and the number of shares of Common Stock offered hereby by such holder have been determined by agreement between the Company and such Selling Securityholder. Because the number of shares of Common Stock that will ultimately be issued upon conversion of the Series A Preferred Stock is dependent, subject to certain limitations, upon the average of certain closing bid prices of the Common Stock prior to conversion, as described above, and certain antidilution adjustments, such number of shares of Common Stock (and therefore the number of shares of Common Stock offered hereby) cannot be determined at this time.
