As filed with the
Securities and Exchange Commission on December 30, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DATARAM CORPORATION
(Exact name of registrant as specified in its charter)
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NEVADA
(State or other jurisdiction of
incorporation or organization)
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3572
(Primary Standard Industrial
Classification Code Number)
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22-18314-09
(I.R.S. Employer
Identification Number)
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777 Alexander Road,
Suite 100, Princeton, NJ 08540
(609) 799-0071
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
David A. Moylan
Chief Executive Officer
Dataram Corporation
777 Alexander Road, Suite 100, Princeton, NJ 08540
(609) 799-0071
(Name, address, including zip code, and telephone number, including area code, of agent for service)
WITH COPIES TO:
Harvey Kesner, Esq.
Sichenzia Ross Ference Kesner LLP
61 Broadway, 32nd Floor
New York, NY 10006
(212) 930-9700
Approximate date
of commencement of proposed sale of the securities to the public:
As soon as practicable after this registration statement becomes effective.
If the securities being
registered on this form are being offered in connection with the formation of a holding company and there is compliance with General
Instruction G, check the following box. ☐
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(d) 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. ☐
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.
See definition of "accelerated
filer and large accelerated filer and smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
☐
Accelerated
filer
☐
Non-accelerated filer
☐
Smaller
reporting company
☑
If applicable, place an X in the
box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i)
(Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer) ☐
CALCULATION OF REGISTRATION
FEE
Title of Each Class of Securities to be Registered
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Amount to be Registered
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Proposed Maximum Offering Price
Per Security(1)
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Proposed Maximum Aggregate
Offering Price(2)
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Amount of Registration Fee
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Common stock, par value $0.001 per share
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45,880,820
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$
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1.58
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$
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72,491,696
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$
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8,401.79
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Common stock issuable upon conversion of Series C Convertible Preferred Stock, par value $0.001 per share
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45,880,820
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$
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1.58
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$
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72,491,696
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$
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8,401.79
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Total
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$
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16,803.58
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(1)
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Based on the closing price of the common stock on December 23, 2016
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(2)
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Pursuant to Rule 457(c) under the Securities Act and solely for the purpose of calculating the registration fee, the proposed maximum aggregate offering price is equal to the product obtained by multiplying (a) $1.58, which represents the average of the high and low prices of the registrant on December 23, 2016, by (b) 45,880,820, the number of shares of registrant’s common stock including common stock issuable upon conversion of Series C Convertible Preferred Stock to be issued in the Merger.
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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 Commission, acting pursuant
to said Section 8(a), may determine.
DATARAM CORPORATION
777 Alexander Road, Suite 100
Princeton, NJ 08540
(609) 799-0071
Dear Shareholder:
On behalf of the Board of Directors and management,
I invite you to attend the Special Meeting of Shareholders of Dataram Corporation (the “Company” or “us”
or “we” or “our” or “Dataram”) to be held at * on *, 2017 at * a.m. EDT.
The notice of Special Meeting
and proxy statement/prospectus accompanying this letter describe the specific business to be acted upon at the meeting.
In addition to the specific
matters to be acted upon, there will be an opportunity for questions of general interest to the shareholders.
Your vote is important.
Whether or not you plan to attend the meeting in person, you are requested to complete, sign, date, and promptly return the enclosed
proxy card in the envelope provided. Your proxy will be voted at the Special Meeting in accordance with your instructions. If you
do not specify a choice on one of the proposals described in this proxy statement/prospectus, your proxy will be voted as recommended
by the Board of Directors. If you hold your shares through an account with a brokerage firm or other nominee or fiduciary such
as a bank, please follow the instructions you receive from such brokerage firm or other nominee or fiduciary to vote your shares.
If you plan to attend the
meeting in person, please respond affirmatively to the request for that information by marking the box on the proxy card. You will
be asked to present valid picture identification. Cameras, recording devices, and other electronic devices will not be permitted
at the meeting.
Sincerely,
David A. Moylan
Chairman and Chief Executive Officer
DATARAM CORPORATION
777 Alexander Road, Suite 100
Princeton, NJ 08540
(609) 799-0071
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
Dear Shareholder:
On
behalf of the Board of Directors and management, I invite you to attend the Special Meeting of Shareholders of Dataram Corporation
(the “Company” or “us” or “we” or “our” or “Dataram”) to be held at
* on *, 2017 at * a.m. EDT.
On
June 13, 2016, we entered into an Agreement and Plan of Merger (the “Merger Agreement”), as amended and restated on
July 29, 2016, and further amended and restated on September 14, 2016 and November 28, 2016 (as so amended, the “Merger Agreement”),
with Dataram Acquisition Sub, Inc., a Nevada corporation and our wholly-owned subsidiary (“DAS”), U.S. Gold Corp.,
a Nevada corporation (“USG”) and Copper King LLC, the principal shareholder of USG pursuant to which USG will be merged
with and into DAS, with USG surviving the merger as the surviving corporation and our wholly-owned subsidiary (the “Merger”).
On June 13, 2016, the Company’s Board of Directors approved the Merger and the issuance of the Merger Consideration (as defined
below), and the Board has subsequently approved each of the amendments to the Merger Agreement and Merger Consideration (defined
below).
At
the Special Meeting, we will ask you to:
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1.
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Approve the Merger and the issuance of an aggregate of (i) up to 45,880,820 shares of common stock,
par value $0.001 per share (the “Common Stock”) of the Company (including shares of Common Stock issuable upon conversion
of our newly designated Series C Convertible Preferred Stock, par value $0.001 per share (the “Series C Preferred Stock”),
(ii) options to purchase up to 925,833 shares of the Company’s Common Stock at an exercise price equal to $0.90 per share
and (iii) warrants to purchase up to 1,809,436 shares of the Company’s Common Stock at an exercise price of $0.66 per share,
(collectively, the “Merger Consideration”) as consideration for the acquisition of USG in accordance with The NASDAQ
Stock Market Rules (“Stock Market Rules”);
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2.
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Approve a certificate of amendment to our Articles of Incorporation to increase our authorized
number of shares of Common Stock and preferred stock, par value $0.01 per share (the “Preferred Stock”) to 200,000,000
shares from 54,000,000 shares and 50,000,000 shares from 5,000,000 shares, respectively;
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3.
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Grant the Board of Directors the authority, in its sole discretion, to approve an amendment to
the Company's Articles of Incorporation to effect a reverse stock split (the “Reverse Split”) of our issued and outstanding
Common Stock by a ratio of not less than 1-for-2 and not more than 1-for-10 at any time prior to *, with the exact ratio to be
set at a whole number within this range as determined by the Board of Directors; and
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Transact such business as may properly come before the meeting or any adjournments.
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These
items of business are described in the attached proxy statement/prospectus, which we encourage you to read in its entirety before
voting.
The
Board of Directors recommends a vote:
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1.
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FOR
the Merger and the issuance of the Merger Consideration;
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2.
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FOR
the certificate of amendment to our Articles of Incorporation to increase our authorized
Common Stock and Preferred Stock; and
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3.
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FOR
the Reverse Split.
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Shareholders
of record at the close of business on *, 2016, will be entitled to notice of and to vote at the Special Meeting and any adjournments
or postponements thereof.
By
Order of the Board of Directors of Dataram Corporation,
Sincerely,
Anthony M. Lougee
Corporate Secretary
YOUR VOTE AT THE SPECIAL MEETING IS IMPORTANT
Your vote is important.
Please vote as promptly as possible even if you plan to attend the Special Meeting.
For information on how
to vote your shares, please see the instruction from your broker or other fiduciary, as applicable, as well as “Information
About the Special Meeting and Voting” in the proxy statement/prospectus accompanying this notice.
We encourage you to vote
by completing, signing, and dating the proxy card, and returning it in the enclosed envelope.
If you have questions about
voting your shares, please contact our Corporate Secretary at Dataram Corporation, at 777 Alexander Road, Suite 100, Princeton,
NJ 08540, telephone number (609) 799-0071.
If you decide to change
your vote, you may revoke your proxy in the manner described in the attached proxy statement/prospectus at any time before it is
voted.
We urge you to review the
accompanying materials carefully and to vote as promptly as possible. Note that we have enclosed with this notice a proxy statement/prospectus.
THE PROXY STATEMENT/PROSPECTUS
IS AVAILABLE AT: http://corporate.dataram.com/company-info/investor-relations/financial-releases-and-info
By Order of the Board of
Directors,
Sincerely,
Anthony M. Lougee
Corporate Secretary
Important
Notice Regarding the Availability of Proxy Materials for the SPECIAL Meeting OF SHAREHOLDERS to Be Held on
*
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2017 at
*
A.M. EDT.
The Notice of Special Meeting of Shareholders
and our Proxy Statement/Prospectus are available at:
http://corporate.dataram.com/company-info/investor-relations/financial-releases-and-info
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REFERENCES TO ADDITIONAL
INFORMATION
This
proxy statement/prospectus incorporates important business and financial information about Dataram Corporation that is not included
in or delivered with this document. You may obtain this information without charge through the Securities and Exchange Commission
(“SEC”) website (www.sec.gov) or upon your written or oral request by contacting the Chief Executive Officer of Dataram
Corporation, 777 Alexander Road, Suite 100, Princeton, New Jersey 08540 or by calling (609) 799-0071.
To
ensure timely delivery of these documents, any request should be made no later than *, 2017 to receive them before the special
meeting.
For
additional details about where you can find information about Dataram, please see the section entitled “Where You Can Find
More Information” in this proxy statement/prospectus.
TABLE OF CONTENTS
Special
Meeting of Dataram Corporation
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3
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Information
about the Special Meeting and Voting
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3
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Prospectus
Summary
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10
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The
Companies
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10
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The
Merger
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12
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Reasons
for the Merger
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13
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Fairness
Opinion of ROTH Capital Partners, LLC
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14
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Overview
of the Merger Agreement
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15
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Lock-up
Agreements
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15
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Management
Following the Merger
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16
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Change
of Control/Change in Control
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Interest
of Certain Directors and Executive Officers
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Material
U.S. Federal Income Tax Consequences of the Merger
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Risk
Factors
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19
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Regulatory
Approvals
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19
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Appraisal
Rights
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19
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Comparison
of Shareholder Rights
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20
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Selected
Historical and Unaudited Pro Forma Condensed Combined Financial Data
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21
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Selected
Historical Financial Data of Dataram
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Selected
Historical Financial Data of USG
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23
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Market
Price and Dividend Information
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26
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Risk
Factors
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28
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Forward-looking
Statements
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37
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The
Merger
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38
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Background
of the Merger
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40
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Dataram
Reasons for the Merger
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42
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USG
Reasons for the Merger
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42
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Fairness
Opinion of ROTH Capital Partners, LLC
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43
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Interests
of Certain of the Company’s Directors and Executive Officers in the Merger
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46
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Form
of the Merger
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47
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Merger
Consideration
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47
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Effective
Time of the Merger
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49
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Regulatory
Approvals
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49
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Material
U.S. Federal Income Tax Consequences of the Merger
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49
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NASDAQ
Stock Market Listing
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51
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Anticipated
Accounting Treatment
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51
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Appraisal
Rights
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51
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The
Merger Agreement
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52
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General
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52
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Merger
Consideration
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52
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Directors
and Officers of the Company Following the Merger
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54
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Surviving
Corporation
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54
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Conditions
to Consummation of the Merger
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54
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Representations
and Warranties
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56
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Other
Agreements
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56
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Agreements
Related to the Merger
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57
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Lock-up
Agreements
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57
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Matters
Being Submitted to a Vote of Dataram Shareholders
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58
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Proposal
1: Approval of the Merger and the Issuance of the Merger Consideration
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58
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Proposal
2: Approval of an Amendment to the Company’s Articles of Incorporation to Increase the Company’s Authorized Common
Stock and Preferred Stock
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59
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Proposal
3: Approval of an Amendment to the Company’s Articles of Incorporation to Effect the Reverse Split
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61
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Dataram’s
Business
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67
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USG’s
Business
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73
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Dataram’s
Management’s Discussion and Analysis of Financial Condition and Results of Operation
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80
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Changes and Disagreements
with Accountants on Accounting and Financial Disclosure
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89
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Quantitative
and Qualitative Disclosures about the Market Risk of Dataram
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89
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USG’s
Management’s Discussion and Analysis of Financial Condition and Results of Operation
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90
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Changes and Disagreements with Accountants on Accounting and Financial Disclosure
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95
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Management
Following the Merger
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96
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Executive
Officers and Directors of the Combined Company Following the Merger
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96
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Independence
of Directors
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99
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Compensation
Committee Interlocks and Insider Participation
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100
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Committees
of the Board
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100
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Audit
Committee
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100
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Compensation
Committee
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101
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Nominating
and Corporate Governance Committee
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102
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Director
Compensation
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102
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Executive
Compensation
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105
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Employment
Agreements and Potential Termination and Change in Control Payments
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106
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Related
Party Transactions of Directors and Executive Officers of the Combined Company
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108
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Dataram
Transactions
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108
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USG
Transactions
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109
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Dataram
Corporation and U.S. Gold Corp. Unaudited Pro Forma Condensed Combined Financial Information
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110
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Dataram
Corporation and U.S. Gold Corp. Notes to Unaudited Pro Forma Condensed Combined Financial Information
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114
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Description
of Dataram Capital Stock
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117
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Comparison
of Rights of Holders of Dataram Stock and USG Stock
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122
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Principal
Shareholders of Dataram
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137
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Principal
Shareholders of USG
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138
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Legal
Matters
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138
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Experts
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138
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Disclosure
of Commission Position on Indemnification for Securities Act Liabilities
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139
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Where
You Can Find More Information
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139
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Dataram
Corporation Index to Consolidated Financial Statements
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140
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Reports
of Independent Registered Public Accounting Firms
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141
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Consolidated
Balance Sheets
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143
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Consolidated
Statements of Operations
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144
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Consolidated
Statements of Shareholders’ Equity
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145
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Consolidated
Statements of Cash Flows
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146
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Notes
to Consolidated Financial Statements
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147
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U.S.
Gold Corp. Index to Financial Statements
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179
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Report
of Independent Registered Public Accounting Firm
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180
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Balance
Sheets
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181
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Statements
of Operations
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182
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Statements
of Shareholders’ Equity
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183
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Statements
of Cash Flows
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184
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Notes
to Financial Statements
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185
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Interim
Results of Operations (Unaudited) U.S. Gold Corp. Index to Financial Statements
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198
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Unaudited
Balance Sheets
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199
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Unaudited
Statements of Operations
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200
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Unaudited
Statements of Cash Flows
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201
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Notes
to Unaudited Financial Statements
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202
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Exhibit
Index
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216
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Annex
A - Third Amended and Restated Agreement and Plan of Merger
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220
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Annex
B - Fairness Opinion of ROTH Capital Partners, LLC
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221
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Annex
C - Certificate of Amendment to Increase Authorized Common Stock
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222
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Annex
D - Certificate of Amendment to Effect Reverse Split
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223
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DATARAM CORPORATION
777 Alexander Road, Suite 100
Princeton, NJ 08540
(609) 799-0071
The information in this proxy statement/prospectus
is not complete and may be changed. We may not sell the securities offered by this proxy statement/prospectus until the registration
statement filed with the Securities and Exchange Commission is effective. This proxy statement/prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any securities in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY PROXY STATEMENT/PROSPECTUS
SUBJECT TO COMPLETION, DATED
DECEMBER 30, 2016
PROXY STATEMENT
FOR SPECIAL MEETING OF SHAREHOLDERS OF DATARAM CORPORATION
PROSPECTUS FOR UP
TO 45,880,820 SHARES OF COMMON STOCK, INCLUDING SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF SERIES C PREFERRED STOCK.
On
June 13, 2016, Dataram Corporation, a Nevada corporation (the “Company” or “us” or “we” or
“our” or “Dataram”) entered into an Agreement and Plan of Merger (the “Merger Agreement”),
as amended and restated on July 29, 2016 and further amended and restated on September 14, 2016 and November 28, 2016, with Dataram
Acquisition Sub, Inc., a Nevada corporation and our wholly-owned subsidiary (“DAS”), U.S. Gold Corp., a Nevada corporation
(“USG”) and Copper King LLC, the principal shareholder of USG pursuant to which USG will be merged with and into DAS,
with USG surviving the merger as the surviving corporation and our wholly-owned subsidiary (the “Merger”). On June
13, 2016, the Company’s Board of Directors approved the Merger and the issuance of the Merger Consideration as defined below,
and has approved each subsequent amendment to the Merger Agreement and Merger Consideration.
Pursuant
to the terms of the Merger Agreement, the Company will issue an aggregate of (i) up to 45,880,820 shares of common stock, par value
$0.001 per share (the “Common Stock”) of the Company (including shares of Common Stock issuable upon conversion of
our newly designated Series C Convertible Preferred Stock, par value $0.001 per share (the “Series C Preferred Stock”)),
(ii) options to purchase up to 925,833 shares of the Company’s Common Stock at an exercise price equal to $0.90 per share
and (iii) warrants to purchase up to 1,809,436 shares of the Company’s Common Stock to be issued to a placement agent at
an exercise price of $0.66 per share, (collectively, the “Merger Consideration”) as consideration for the acquisition
of USG in accordance with The NASDAQ Stock Market Rules (“Stock Market Rules”);
On
September 16, 2016, the Board approved, subject to the approval of the shareholders, the filing of a certificate of amendment (the
“Certificate of Amendment”) to our Articles of Incorporation to increase our authorized number of shares of Common
Stock and Preferred Stock to 200,000,000 shares from 54,000,000 shares and 50,000,000 shares from 5,000,000 shares, respectively;
On
September 16, 2016, the Board approved, subject to the approval of the shareholders, an amendment to our Articles of Incorporation
to effect a reverse stock split (the “Reverse Split”) of our issued and outstanding Common Stock by a ratio of not
less than 1-for-2 and not more than 1-for-10 at any time prior to *, with the exact ratio to be set at a whole number within this
range as determined by the Board of Directors.
Proposals
to approve the Merger and the issuance of the Merger Consideration, an amendment to our Articles of Incorporation to increase our
authorized Common Stock and Preferred Stock, and the Reverse Split will be presented at the Special Meeting of shareholders of
Dataram Corporation scheduled to be held on *, 2017.
This proxy statement/prospectus
provides detailed information that that you should read before you vote on the proposals that will be presented to you at the Special
Meeting of the Company’s shareholders. We encourage you to carefully read this entire document and the documents incorporated
by reference.
You should also carefully consider the risk factors described in “
Risk Factors”
beginning
on page 30 of this proxy statement/prospectus.
These securities have
not been approved or disapproved by the Securities and Exchange Commission or any state securities commission nor has the Securities
and Exchange Commission or any state securities commission passed upon the accuracy or adequacy of this proxy statement/prospectus.
Any representation to the contrary is a criminal offense.
The Special Meeting will
be held at * on *, 2017 at * a.m. EDT.
This proxy statement/prospectus
is dated *, 2016. On or about *, 2017, we will mail this proxy statement/prospectus in paper copy. For information on how to vote
your shares, please see the instruction form from your broker or other fiduciary, as applicable, as well as “Information
About the Special Meeting and Voting” in the proxy statement/prospectus. Shareholders who, according to our records, owned
shares of the Company’s Common Stock and Series D Preferred Stock at the close of business on *, 2016, will be entitled to
vote at the Special Meeting.
If you would like to attend
the meeting and vote in person, please send an email to info@dataram.com and directions will be provided to you.
SPECIAL MEETING OF DATARAM CORPORATION
Information About the Special Meeting and Voting
Why am I receiving these proxy materials?
The Board of Directors
(“Board”) of Dataram Corporation (the “Company” or “us” or “we” or “our”
or “Dataram”) is asking for your proxy for use at the Special Meeting of Shareholders of the Company, to be held at
*on *, 2017 at *a.m. EDT and at any adjournment or postponement of the meeting. As a shareholder, you are invited to attend the
meeting and are entitled to and requested to vote on the items of business described in this proxy statement.
This proxy statement/prospectus
is furnished to shareholders of Dataram Corporation, a Nevada corporation, in connection with the solicitation of proxies by the
Board for use at the Special Meeting of Shareholders (the “Meeting”).
Sharing the Same Last Name and Address
We are sending only one
copy of our proxy statement / prospectus to shareholders who share the same last name and address, unless they have notified us
that they want to continue receiving multiple copies. This practice, known as “householding,” is designed to reduce
duplicate mailings and save significant printing and postage costs.
If you received a householded
mailing this year and you would like to have additional copies of our proxy statement / prospectus mailed to you, or you would
like to opt out of this practice for future mailings, we will promptly deliver such additional copies to you if you submit your
request to our Corporate Secretary at 777 Alexander Road, Suite 100, Princeton, New Jersey 08540 or call us at 609-799-0071. You
may also contact us in the same manner if you received multiple copies of the materials and would prefer to receive a single copy
in the future.
Who is soliciting my vote?
The Board is soliciting your vote.
When were the enclosed solicitation materials first given to
shareholders?
We will mail this proxy
statement/prospectus and a proxy card on or about *, 2017 to shareholders of record of the Company.
What is the purpose of the meeting?
You will be voting on:
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1.
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Approval of the Merger and the issuance of the Merger Consideration in connection with the acquisition
of USG in accordance with the Stock Market Rules;
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2.
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Approval of a certificate of amendment to our Articles of Incorporation to increase our authorized
Common Stock and Preferred Stock to 200,000,000 shares from 54,000,000 shares and 50,000,000 shares from 5,000,000 shares, respectively;
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3.
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Approval of the Reverse Split; and
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4.
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Such other business that is properly presented at the meeting.
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What are the Board’s recommendations?
The Board recommends a vote:
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1.
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“FOR”
the Merger and the issuance of the Merger Consideration;
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2.
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“FOR”
the approval of the certificate of amendment to our Articles of Incorporation
to increase our authorized Common Stock and Preferred Stock to 200,000,000 shares from 54,000,000 shares and 50,000,000 shares
from 5,000,000 shares, respectively; and
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3.
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“FOR”
approval of the Reverse Split.
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Who is entitled to vote at the meeting, what is the “record
date”, and how many votes do they have?
Holders of record of our
Common Stock and Series D Preferred Stock at the close of business on *, 2017 (the “Record Date”) will be entitled
to vote at the meeting. Each share of Common Stock has one vote and each share of Series D Preferred Stock is entitled to such
number of votes as shall equal the number of shares of Common Stock into which such shares are convertible, based on a conversion
price of $1.36 per share and subject to beneficial ownership limitations. There were * shares of Common Stock and * shares of Series
D Preferred Stock outstanding on the Record Date officers and directors hold approximately *% of the outstanding voting capital
as of the Record Date.
What is a quorum of shareholders?
In order to carry on the
business of the Special Meeting, a quorum must be present. If a majority of the shares outstanding and entitled to vote on the
Record Date are present, either in person or by proxy, we will have a quorum at the meeting. Any shares represented by proxies
that are marked for, against, withhold, or abstain from voting on a proposal will be counted as present in determining whether
we have a quorum. If a broker, bank, custodian, nominee, or other record holder of our voting capital indicates on a proxy card
that it does not have discretionary authority to vote certain shares on a particular matter, and if it has not received instructions
from the beneficial owners of such shares as to how to vote on such matters, the shares held by that record holder will not be
voted on such matter (referred to as “broker non-votes”) but will be counted as present for purposes of determining
whether we have a quorum. Since there were * shares of Common Stock and * shares of Series D Preferred Stock which are convertible
into * shares of Common Stock outstanding, of which * shares are entitled to vote, taking into account voting and ownership limitations,
on *, 2017 the presence of holders of * shares of voting capital will represent a quorum. We must have a quorum to conduct the
meeting.
How many votes does it take to pass each matter?
Proposal 1: Approval of the Merger and the issuance of the Merger Consideration
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The affirmative vote of a majority of the votes cast at the Special Meeting is required to approve the Merger and the issuance of the Merger Consideration. Abstentions and broker non-votes will be counted towards the tabulation of votes cast on this proposal and will have the same effect as a negative vote. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name on this proposal.
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Proposal 2: Amendment to our Articles of Incorporation to Increase our Authorized Capital Stock.
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The affirmative vote of a majority of the votes outstanding as of the Record Date is required to approve the amendment to our Articles of Incorporation to increase our authorized capital stock. Abstentions and broker non-votes will be counted towards the tabulation of votes cast on this proposal and will have the same effect as a negative vote. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name on this proposal.
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Proposal 3: Approval of the Reverse Split
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The affirmative vote of a majority of the votes outstanding as of the Record Date is required to approve the Reverse Split. Abstentions and broker non-votes will be counted towards the tabulation of votes cast on this proposal and will have the same effect as a negative vote. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name on this proposal.
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Who can attend the meeting?
All shareholders at the
close of business on *, 2017 the Record Date, or their duly appointed proxies, may attend the meeting.
What do I need to attend the meeting?
In order to be admitted
to the meeting, a shareholder must present proof of ownership of Common Stock or Series D Preferred Stock as of the Record Date.
If your shares are held in the name of a broker, bank, custodian, nominee, or other record holder (“street name”),
you must obtain a proxy, executed in your favor, from the holder of record (that is, your broker, bank, custodian, or nominee)
to be able to vote at the meeting. You will also be required to present a form of photo identification, such as a driver’s
license.
What is a proxy?
A proxy is another person
you authorize to vote on your behalf. We ask shareholders to instruct the proxy how to vote so that all voting capital may be voted
at the meeting even if the holders do not attend the meeting.
How are abstentions and broker non-votes
treated?
Abstentions and broker
non-votes count for purposes of determining the presence of a quorum. Abstentions and broker non-votes will not be counted as votes
cast either for or against any of the proposals being presented to shareholders and will have no impact on the result of the vote
on these proposals.
How do I vote?
If you are a shareholder
of record, you may vote by mailing a completed proxy card or in person at the Special Meeting.
If you are a street name
holder (meaning that your shares are held in a brokerage account by a bank, broker or other nominee), you may direct your broker
or nominee how to vote your shares; however, you may not vote in person at the Special Meeting unless you have obtained a signed
proxy from the record holder giving you the right to vote your beneficially owned shares.
You must be present, or
represented by proxy, at the Special Meeting in order to vote your shares. You can submit your proxy by completing, signing, and
dating your proxy card and mailing it in the accompanying pre-addressed envelope.
YOUR PROXY CARD WILL BE VALID ONLY IF
YOU COMPLETE, SIGN, DATE, AND RETURN IT BEFORE THE MEETING DATE.
How will my proxy vote my shares?
If your proxy card is properly
completed and received, and if it is not revoked, before the Special Meeting, your shares will be voted at the meeting according
to the instructions indicated on your proxy card. If you sign and return your proxy card, but do not give any voting instructions,
your shares will be voted as follows:
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1.
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“
FOR
” approval of the Merger and the issuance of the Merger Consideration in
connection with the acquisition of USG in accordance with the Stock Market Rules;
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2.
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“
FOR
” approval of a certificate of amendment to our Articles of Incorporation
to increase our authorized Common Stock and Preferred Stock to 200,000,000 shares from 54,000,000 shares and 50,000,000 shares
from 5,000,000 shares, respectively; and
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3.
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“
FOR
” approval of the Reverse Split.
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To our knowledge, no other
matters will be presented at the meeting. However, if any other matters of business are properly presented, the proxy holders named
on the proxy card are authorized to vote the shares represented by proxies according to their judgment.
If my shares are held in “street name”
by my broker, will my broker vote my shares for me?
If your shares are held
in a brokerage account, you will receive from your broker a full meeting package including a voting instruction form to vote your
shares. Your brokerage firm may permit you to provide voting instructions by telephone or by the internet. Brokerage firms have
the authority under NASDAQ rules to vote their clients’ unvoted shares on certain routine matters.
The following matters are
considered non-routine matters. NASDAQ rules do not permit brokerage firms to vote their clients’ unvoted shares for:
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Proposal 1: Approval of the Merger and the issuance of the Merger Consideration in connection with
the acquisition of USG in accordance with the Stock Market Rules;
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Proposal 2: Approval of a certificate of amendment to our Articles of Incorporation to increase
our authorized Common Stock and Preferred Stock to 200,000,000 shares from 54,000,000 shares and 50,000,000 shares from 5,000,000
shares, respectively; and
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Proposal 3: Approval of the Reverse Split.
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Therefore, if you do not
vote on these proposals, your shares will remain unvoted on those proposals. We urge you to provide voting instructions to your
brokerage firm so that your vote will be cast on those proposals.
What does it mean if I receive more than
one proxy card or instruction form?
If you receive more than
one proxy card or instruction form, it means that you have multiple accounts with our transfer agent and/or a broker or other nominee
or fiduciary or you may hold your shares in different ways or in multiple names (e.g., joint tenancy, trusts, and custodial accounts).
Please vote all of your shares.
How do I revoke my proxy and change my vote
prior to the meeting?
If you are a registered
shareholder (meaning your shares are registered directly in your name with our transfer agent) you may change your vote at any
time before voting takes place at the meeting. You may change your vote by:
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1.
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Delivering another proxy card or voter instruction form to Dataram Corporation, ATTN: Corporate
Secretary, 777 Alexander Road, Suite 100, Princeton NJ 08540, with a written notice dated later than the proxy you want to revoke
stating that the proxy is revoked.
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2.
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Completing and sending in another proxy card or voting instruction form with a later date.
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3.
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Attending the meeting and voting in person.
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For shares you hold beneficially
or in street name, you may change your vote by submitting new voting instructions to your bank, broker or other nominee or fiduciary
in accordance with that entity’s procedures, or if you obtained a legal proxy form giving you the right to vote your shares,
by attending the meeting and voting in person.
Who pays for the proxy solicitation and
how will the Company solicit votes?
We will pay the costs of
preparing, printing, and mailing the notice of Special Meeting of Shareholders, this proxy statement/prospectus and the enclosed
proxy card. We will also reimburse brokerage firms and others for reasonable expenses incurred by them in connection with their
forwarding of proxy solicitation materials to beneficial owners. The solicitation of proxies will be conducted primarily by mail,
but may also include telephone, facsimile, or oral communications by directors, officers, or regular employees of the Company acting
without special compensation.
We have retained Equity
Stock Transfer to aid in the distribution of proxy materials and to provide voting and tabulation services for the Special Meeting.
For these services, we will pay total fees of approximately $34,000.
Proposals to be Presented at the Special
Meeting
We will present three proposals
at the meeting. We have described in this proxy statement/prospectus all of the proposals that we expect will be made at the meeting.
If any other proposal is properly presented at the meeting, we will, to the extent permitted by applicable law, use your proxy
to vote your shares of voting capital on such proposal in our best judgment.
PROPOSALS OF SECURITY HOLDERS AT SPECIAL
MEETING
Any shareholder wishing
to present a proposal which is intended to be presented at the Special Meeting of Shareholders should submit such proposal to the
Company at its principal executive offices no later than *, 2017. It is suggested that any proposals be sent by certified mail,
return receipt requested.
OTHER MATTERS
Should any other matter
or business be brought before the meeting, a vote may be cast pursuant to the accompanying proxy in accordance with the judgment
of the proxy holder. The Company does not know of any such other matter or business.
No Appraisal Rights
Under
the Nevada Revised Statutes and our charter documents, holders of our Common Stock and Series D Preferred Stock will not be entitled
to statutory rights of appraisal, commonly referred to as dissenters’ rights or appraisal rights (i.e., the right to seek
a judicial determination of the “fair value” of their shares and to compel the purchase of their shares for cash in
that amount) with respect any of the proposals.
For more information about such rights, see
the provisions of Section 92A.390 of the Nevada Revised Statutes.
Change of Control/Change
in Control
The
Board of Directors has determined that the Merger Consideration will constitute a change of control or change in control. Upon
the closing of the Merger and upon the Company’s satisfaction of all notice requirements under the Exchange Act, the majority
of the Board of Directors will change and the following individuals will be appointed to the Board of the Company: Timothy M. Janke,
James Dale Davidson and John N. Braca. In connection with the approval of Proposal 1, a vote in favor of such proposal will be
deemed to be a vote in favor of any change in control and of control resulting from the consummation of the Merger.
Stock
Market Rule 5635(b) requires shareholder approval where the issuance of securities will result in a change of control.
Immediately
after the Merger, USG shareholders will own approximately 90.8% of the Common Stock of the Company (including
shares
of Common Stock issuable upon conversion of Series C Preferred Stock) and the Company shareholders will own
will
own approximately 9.2% of the Common Stock of the Company.
Therefore, the Company is required to obtain the approval of
its shareholders pursuant to Stock Market Rule 5635(b).
Related Party Transactions
Stock
Market Rule 5635(a)(2) requires shareholder approval where any director, officer or substantial shareholder of the Company
has a 5% or greater interest (or such persons collectively have a 10% or greater interest), directly or indirectly, in the company
to be acquired or in the consideration to be paid in the transaction and the present or potential issuance of common
stock, or securities convertible into or exercisable for common stock, could result in an increase in outstanding common shares
or voting power of 5% or more.
Based
on the Company’s current understanding, no director, officer or substantial shareholder of the Company will have a 5%
or greater interest (or such persons collectively have a 10% or greater interest), directly or indirectly, in the company’s
voting stock to be acquired or in the consideration to be paid in the transaction and the present or potential issuance of
common stock, or securities convertible into or exercisable for common stock, could result in an increase in outstanding common
shares or voting power of 5% or more.
INTEREST OF DIRECTORS
AND EXECUTIVE OFFICERS IN THE PROPOSALS
Edward
Karr is a member of the Board of Directors of the Company and the President, Chief Executive Officer, a member of the Board of
Directors and a shareholder of USG. Accordingly, Mr. Karr has a substantial interest in Proposal 1. Mr. Karr has recused himself
from all decisions relating to Dataram’s acquisition of USG. In addition, the Company’s counsel, Sichenzia Ross Ference
Kesner LLP, has previously represented USG in unrelated matters prior to the consummation of the Merger negotiations. The Company’s
Finance and Investment Committee, consisting of Directors Trent Davis, David Moylan and Michael Markulec, has overseen the negotiation
of the terms of the Merger on behalf of the Company, and has retained special independent counsel, Windels Marx Lane and Mittendorf,
LLP to assist the Committee. Members of the Board and executive officers of the Company do not have any interest in any other Proposal
that is not shared by all other shareholders of the Company.
ANNUAL REPORT ON FORM 10-K
Upon the written request
of a shareholder, the Company will provide, without charge, a copy of its Annual Report on Form 10-K for the year ended April 30,
2016, including the financial statements and schedules and documents incorporated by reference therein but without exhibits thereto,
as filed with the SEC. The Company will furnish any exhibit to the Annual Report on Form 10-K to any shareholder upon request and
upon payment of a fee equal to the Company’s reasonable expenses in furnishing such exhibit. All requests for the Annual
Report on Form 10-K or its exhibits should be addressed to Chief Financial Officer, Dataram Corporation, 777 Alexander Road, Suite
100, Princeton, New Jersey 08540.
PROSPECTUS SUMMARY
This
summary highlights selected information from this proxy statement/prospectus and may not contain all of the information that is
important to you. To better understand the Merger and the proposals being considered at the Dataram Corporation Special Meeting,
you should read this entire proxy statement/prospectus carefully, including the Merger Agreement attached as Annex A, the opinion
of ROTH Capital Partners, LLC attached as Annex B and the other annexes to which you are referred herein. For more information,
please see the section entitled “Where You Can Find More Information” in this proxy statement/prospectus.
THE COMPANIES
Dataram Corporation
777 Alexander Road, Suite 100
Princeton, NJ 08540
(609) 799-0071
Since
1967, Dataram has been an independent manufacturer of memory products and provider of performance solutions. The Company provides
customized memory solutions for original equipment manufacturers (OEMs) and compatible memory for leading brands including Cisco,
Dell, Fujitsu, HP, IBM, Lenovo and Oracle as well as a line of memory products for Intel and AMD motherboard based servers.
Dataram manufactures its memory in-house to meet three key criteria - quality, compatibility, and selection - and tests its memory
for performance and OEM compatibility as part of the production process. With memory designed for over 50,000 systems and
with products that range from energy-efficient DDR4 modules to legacy SDR offerings, Dataram offers one of the most complete portfolios
in the industry. The Company is a CMTL Premier Participant and ISO 9001 (2008 Certified). Its products are fully compliant
with JEDEC Specifications. Dataram’s customers include an international network of distributors, resellers, retailers, OEM
customers and end users.
In addition to memory products,
Dataram offers solutions that provide its customers significant and quantifiable cost savings (reduction in total cost of ownership)
while helping them manage end-of-life transitions. These include:
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Design and engineering services;
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Contract and flexible manufacturing to accommodate special customer needs;
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Simulation labs for testing and validation;
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Financial programs and trade-in / trade-up programs to allow customers to optimize memory procurements;
and
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Software tools to assess memory needs and optimize memory deployment and application performance.
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Dataram has four business
lines which provide complementary solutions to the market. Each has a different customer focus and “go to market”
approach. They are:
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Dataram / Princeton Memory;
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Micro Memory Bank (MMB);
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The Dataram / Princeton
Memory Business provides innovative new memory products that support enterprise / mission critical need; custom and high end memory
solutions for most demanding customers ranging from enterprise and data center segments to power users and gamers; provides solutions
to extend the density memory options available to customers. The business also provides:
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Memory Solutions Services:
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Performance optimization, total cost of computing reduction consulting;
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Engineering and design services for embedded applications;
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Proof of concept engagements;
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Customized consignment programs;
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Product on-demand offerings; and
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Software: products that improve application and computing performance; and
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Buy-back program: in conjunction with the MMB business, provides customers with opportunity
to “trade-in” existing memory as part of a sale with trade-in credited towards purchase of new memory.
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The
Micro Memory Bank business provides new and refurbished memory products which are not commonly available. These solutions
extend the life of the system where memory is no longer available by the OEM, helping companies avoid the cost of additional hardware
expenditures. The business also provides:
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Brokerage services: makes opportunistic purchases of excess surplus inventories for less
than market price; also buys unknown inventory which is then opened, cataloged, and sometimes refurbished;
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Buy-back program: works with Princeton business to provide customers with opportunity to “trade-in”
existing memory as part of a sale with trade-in credited towards purchase of new memory. Memory traded-in is refurbished
and then sold; and
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Technology recycling program: provides end of life recycling services to customers across all IT
hardware categories including laptops, desktops, workstations, servers, main frames, hubs and switches.
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Operating
since 1994, 18004Memory.com web property provides a one-stop source for new and refurbished memory products used in desktops, laptops,
notebooks, servers, MAC systems, printers, digital cameras, PDAs, MP3 players, and more. They provide memory upgrades for
all major brands including Compaq, Dell, Apple, Hewlett-Packard, Toshiba, IBM, Gateway, Sony, Fujitsu, and Acer.
The
Memorystore.com web property provides a one-stop web source for “Dataram Value Memory” products used in desktops, laptops,
notebooks, servers, workstations, and MAC systems. Dataram Value Memory is memory specifically designed and tested to meet
industry standards. It is purchased by customers who know the exact technical specifications of the memory they need. Dataram
Value Memory is fully compliant with JEDEC Specifications.
U.S. Gold Corp.
Suite 102, Box 604
1910 East Idaho Street
Elko, NV 89801
(755) 888-4060
U.S. Gold Corp. (“USG”)
is an exploration stage company that owns certain mining leases and other mineral rights. On July 2, 2014, USG entered into an
asset purchase agreement with Wyoming Gold Mining Company, Inc. (“Wyoming Gold”) for the purchase of the Copper King
gold and copper development project located in the Silver Crown Mining district of southwest Wyoming (the “Copper King Project”).
On May 27, 2016, USG acquired certain unpatented mining claims related to a gold development project in Eureka County, Nevada from
Nevada Gold Ventures, LLC (“Nevada Gold”) and Americas Gold Exploration, Inc. (the “Keystone Project”).
Subsequent to this acquisition, USG acquired 71 additional unpatented lode mining claims.
Copper
King Project
The Copper King Project
is located in southeastern Wyoming. USG’s rights to the Copper King Project are derived from two mineral leases from the
State of Wyoming. Ownership of the mineral rights remains in the possession of the State of Wyoming as conveyed to the state by
the United States. The State of Wyoming issued the mineral leases to Wyoming Gold in 2013 and 2014 and Wyoming Gold assigned both
leases to USG on June 23, 2014. Limited exploration and mining were conducted on the Copper King property in the late 1880s and
early 1900s. Since 1938, at least nine historic (pre-Strathmore) drilling campaigns by at least seven companies and the U. S. Bureau
of Mines have been conducted at Copper King. Wyoming Gold conducted an exploration drill program in 2007 and 2008. The focus of
Wyoming Gold’s work was to confirm and potentially expand the mineralized body outlined in the previous drill campaigns,
increase the geologic and geochemical database leading to the creation of the current geologic model and resource estimate, and
to provide material for further metallurgical testing.
Keystone
Project
On May 25, 2016, USG entered
into a purchase and sale agreement (“Purchase and Sale ”), as amended and restated, with Nevada Gold and Americas Gold
Exploration, Inc. pursuant to which USG acquired certain mining claims related to a gold development project in Nevada. At the
time of purchase, the Keystone Project consisted of 284 unpatented lode mining claims situated in Eureka County, Nevada. Subsequent
to the acquisition, USG acquired 71 additional unpatented lode mining claims. No comprehensive, modern-era, model-driven exploration
has ever been conducted on the Keystone Project. Previously, significant amounts of low grade (+/- 0.02 opt) and anomalous gold
were intersected, but results were considered uneconomic, and prior projects were terminated.
USG Capital Raise
USG recently completed
a private placement of shares of its Series C Preferred Stock pursuant to which it raised approximately $12.0 million in gross
proceeds. As described below, these shares will be converted into Company securities as part of the Merger.
Dataram Acquisition Sub, Inc.
Dataram Acquisition Sub,
Inc. (“DAS”) is a wholly owned subsidiary of the Company and was formed
for the
purposes of carrying out the Merger.
THE
MERGER
Upon
the effective time of the Merger,
USG will be merged with and into DAS, with USG surviving the Merger as the wholly-owned
subsidiary of the Company.
Immediately after the Merger, USG shareholders will own approximately 90.8%
of the Common Stock of the Company, (including
shares of Common Stock issuable upon conversion of Series C Preferred Stock)
and the Company shareholders will own
will own approximately 9.2% of the Common Stock
of the Company.
REASONS
FOR THE MERGER
Each
of the board of directors of the Company and USG also considered other reasons for the Merger, as described herein.
The
Company’s Board of Directors and
the Finance and Investment Committee (the “Special Committee”)
considered
the following factors in reaching its conclusion to approve the Merger and to recommend that the Company’s shareholders approve
the Merger and the issuance of the Merger Consideration, all of which the Company’s Board of Directors and
the Special
Committee
viewed as supporting its decision to approve the business combination with USG:
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The Company’s
Board of Directors believes that based upon the Company’s current financial situation, the market for its products and services
and projected growth that entry into the natural resources segment represents a market opportunity that would diversify the Company’s
business model and thereby mitigate risk associated with focusing on one industry and increase the overall value of the Company.
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The
Company’s
Board of Directors
concluded that the Merger would provide the existing Company shareholders an opportunity to participate
in the potential growth of the combined organization following the Merger, while the Company’s pre-merger shareholders will
benefit from any decision by the Company to sell or spin off the existing Company business within eighteen (18) months of the consummation
of the Merger through the declaration of a special dividend ( See “Overview of the Merger Agreement – Conditions to
Consummation of the Merger”) payable to the Company’s shareholders as of a record date which is no less than five (5)
business days prior to the effective date of the Merger.
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The Company’s
Board of Directors also considered that the combined organization will be led by an experienced senior management team and a Board
of Directors with representation from each of the current boards of directors of Dataram and USG.
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The Company’s
Special Committee considered the financial analyses of ROTH Capital
Partners, LLC (“ROTH”), including its opinion to the Special Committee as to the fairness to the shareholders of Dataram,
from a financial point of view and as of November 28, 2016, the date of the opinion, of the exchange ratio.
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The expenses to be incurred in connection with the Merger;
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The possible volatility, at least in the short term, of the
trading price of the Company’s Common Stock resulting from the Merger announcement;
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The strategic direction of the combined entity following the completion of
the
Merger;
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The potentially strengthened balance sheet of the combined organization resulting from (i) the
requirement that USG have raised a minimum of $3,000,000 in net proceeds and up to a maximum of $12,000,000 in gross proceeds from
a finance transaction on or prior to the closing of the Merger, (ii) that there be no liabilities on the books of USG, and (iii)
USG does not have any known and reported legal issues;
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The impact that the Merger will have on the Company’s operating expenses and expenses of
being a public company as such expenses will be allocated between the surviving entity’s two lines of business;
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The Merger Consideration which is in the form of equity and not cash;
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The market price for the Company’s Common Stock and its impact on the Company’s ability
to raise capital as a stand-alone entity;
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The Company’s history of losses over the prior several years and its impact on the Company’s
ability to raise capital as a stand-alone entity;
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The Company’s current economic condition and difficulties to be faced as a standalone company;
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The Company’s restrictions on ability to raise capital without approval of a majority of
the holders of the Series D Preferred Stock; and
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Various other risks associated with the combined organization and the Merger, including those described
in the section entitled “Risk Factors” in this proxy statement/prospectus.
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In
the course of reaching its decision to approve the Merger, the Board of Directors of USG consulted with its senior management,
financial advisor and legal counsel, reviewed a significant amount of information and considered a number of factors, including,
among others:
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The potential to provide its current shareholders with greater
liquidity by owning stock in a public company;
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The expenses
to be incurred in connection with the Merger and related administrative challenges associated with combining the companies;
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The additional
public company expenses and obligations that USG’s business will be subject to following the Merger that it has not previously
been subject to; and
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Various other
risks associated with the combined organization and the merger, including the risks described in the section entitled “Risk
Factors” in this proxy statement/prospectus.
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FAIRNESS
OPINION OF ROTH CAPITAL PARTNERS
Roth
Capital Partners LLC, a full service investment banking firm dedicated to the small-cap public market, was retained to provide
an opinion as to the fairness of the Merger Consideration to the shareholders of the Company from a financial point of view. Roth
Capital Partners LLC assessed the value of the Merger Consideration using publicly available and other information provided by
the Company such as financial information including financial performance and operating data of the Company and USG and financial
forecasts relating to USG. In addition,
Roth Capital Partners LLC
engaged in discussions
with management of the Company with respect to past and current operations and financial condition and prospects of the Company
and USG and the strategic rationale for, and the potential benefits of, the Merger.
Based
on the foregoing, in a letter dated November 28, 2016,
Roth Capital Partners
concluded
that the Merger Consideration was fair, from a financial point of view, to the shareholders of the Company.
A
copy of the fairness opinion is attached as Annex B to this proxy statement/prospectus and is incorporated by reference in
its entirety into this proxy statement/prospectus.
OVERVIEW
OF THE MERGER AGREEMENT
Surviving
Corporation
At
the effective time of the merger
all the properties, rights, privileges, powers and franchises of DAS and USG will vest
in the surviving corporation debts, liabilities and obligations of DAS and USG will become the debts, liabilities and obligations
of the Surviving Corporation. In addition, the articles of incorporation and bylaws of USG in effect at the effective time will
become the articles of incorporation and the bylaws of the surviving corporation. Furthermore, the officers and directors of USG
and DAS in office immediately prior to the effective time will be the officers and directors of the surviving corporation.
Merger
Consideration
At
the effective time of the merger,
the outstanding shares of common stock, Series A Preferred Stock, Series B Preferred Stock
and Series C Preferred Stock of USG will be converted into the right to receive an aggregate of (i) up to 45,880,820 shares of
Common Stock of the Company (including shares of Common Stock issuable upon conversion of our newly designated Series C Preferred
Stock, (ii) options held by certain USG holders will be exchanged for five-year options to purchase up to 925,833 shares of the
Company’s Common Stock at an exercise price equal to $0.90 per share which vest 1/24 each month over the 2 years from the
original date of issue and (iii) warrants held by USG holders will be exchanged for five-year cashless warrants to purchase up
to 1,809,436 shares of the Company’s Common Stock at an exercise price equal to $0.66 per share (collectively, the “Merger
Consideration”) as consideration for the acquisition of USG in accordance with The NASDAQ Stock Market Rules (“Stock
Market Rules”).
Conditions to
the Consummation of the Merger
In
addition to closing conditions described in more detail hereafter, the closing of the Merger is subject to customary closing conditions,
including, among other things:
|
1.
|
the approval of the Company’s shareholders holding a majority of the Company’s outstanding
voting capital of the Merger and the issuance the Merger Consideration pursuant to the continued listing standards of The NASDAQ
Stock Market LLC;
|
|
2.
|
the approval of the Company’s shareholders holding a majority of the Company’s outstanding
voting capital to increase the number of shares of authorized Common Stock and Preferred Stock;
|
|
3.
|
the receipt by the Company of a fairness opinion with respect to the Merger and the Merger Consideration;
|
|
4.
|
the Company filing Schedule 14f-1 with respect to the change with the Company’s Board of
Directors;
|
|
5.
|
the receipt of lock-up agreements from certain USG shareholders; and
|
|
6.
|
the declaration by the Board of Directors of the Company of a special dividend (the “Special
Dividend”) entitling each shareholder of the Company prior to consummation of the Merger to a proportionate interest, equal
to such shareholders interest in the Company, to the Company’s existing businesses as described above under “The Companies
– Dataram Corporation”, or the proceeds therefrom, in the event the Board of the Company elects to divest such businesses
with eighteen (18) months after consummation of the Merger.
|
Lock-up
Agreements
As a condition to the closing
of the Merger certain USG security holders have entered into lock-up agreements pursuant to which such parties have agreed not
to, except in limited circumstances, sell or transfer, or engage in swap or similar transactions with respect to, shares of the
Company’s Common Stock, including, as applicable, shares received in the Merger from that effective time of the Merger until
one or two years following the closing of the Merger. See section entitled “
Merger
Consideration
” in this proxy statement/prospectus.
As
of *, the Company’s shareholders who have executed lock-up agreements beneficially owned in the aggregate approximately *%
of the outstanding shares of the Company’s Common Stock.
Escrow Shares
At
the Effective Time of the Merger, the Company shall deliver to the escrow agent, Merger Consideration consisting of 10% of the
total number of
shares of capital stock of the Company otherwise issuable to Copper King
in shares of Series C Preferred Stock
(the “Escrow Shares”). The Escrow Shares will be available to secure any
claims that may arise with respect to the representations, warranties, covenants or indemnification obligations of Copper King
and USG pursuant to the Merger Agreement as well as against the failure to deliver a new economic preliminary report upon the Copper
King Project during the period of twelve (12) months following the closing of the Merger (the “Escrow Period”).
In
no event will the indemnification obligations of Copper King exceed the Escrow Shares. The Escrow Shares will not be available
for sale, transfer or other disposition by Copper King during the Escrow Period.
Indemnification
The
Merger Agreement provides that, Copper King will, indemnify and hold harmless the Company, the surviving entity and their respective
directors, officers and affiliates and their successors and assigns (the “Company Indemnified Parties”) from and against
any and all actions, costs, damages, expenses, losses (collectively, the “Losses”) to the extent such Losses result
or arise from breach of any representations or warranties set forth in the Merger Agreement and all taxes resulting from or relating
to the ownership, management or use of and the operation of USG prior to and including the closing date. Copper King shall not
have any liability to the Company Indemnified Parties for any Losses referred to above until all of such liabilities collectively
exceed $10,000. Moreover, in no event shall Copper King aggregate liability of the Company Indemnified Parties exceed the after
tax amount of such claim and all claims shall be net of any insurance proceeds reasonably expected to be received in respect to
the Losses subject to such claim. Pursuant to the terms of the Merger Agreement, Copper King indemnification obligation is limited
to the Escrow Shares. See section entitled “
Escrow Shares
” above.
MANAGEMENT
FOLLOWING THE MERGER
Management
of the Company / Management of Surviving Corporation
Pursuant
to the Merger Agreement, Trent D. Davis and Michael E. Markulec will resign as members of the Board of Directors at or prior
to the consummation of the Merger. In addition, USG appointed the following three designees to the Company’s Board of Directors,
which appointment shall be effective on the eleventh day following the date on which the Company meets its information obligations
under the Exchange Act, including the filing and mailing of a Schedule 14f-1: Timothy M. Janke, James Dale Davidson and John N.
Braca.
The
following table lists the names and positions of the individuals who are expected to serve as executive officers and directors
of the Company upon completion of the Merger:
Name
|
|
Title
|
Edward M. Karr
|
|
Chief Executive Officer, President and Director
|
David A. Moylan
|
|
President: Dataram Division and Director
|
David S. Rector
|
|
Chief Operating Officer and Corporate Secretary
|
Timothy M. Janke
|
|
Director
|
James Dale Davidson
|
|
Director
|
John N. Braca
|
|
Director
|
CHANGE OF CONTROL/CHANGE
IN CONTROL
The
Board of Directors has determined that the Merger Consideration will constitute a change of control or change in control. Upon
the closing of the Merger and upon the Company’s satisfaction of all notice requirements under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), the majority of the Board of Directors will change and the following individuals
will be appointed to the Board of the Company:
Timothy M. Janke, James Dale Davidson and
John N. Braca.
In connection with the approval of the Merger and the issuance of the Merger Consideration a vote in favor
of such proposal will be deemed to be a vote in favor of any change in control resulting from the consummation of the Merger.
INTEREST OF CERTAIN
DIRECTORS AND EXECUTIVE OFFICERS
Certain
members of management of the Company have interests which may be different from your interests as shareholders of the Company.
Members of the Special Committee were aware of these interests at the time they approved the Merger Agreement.
Edward
Karr is a member of the Board of Directors of the Company and the President, Chief Executive Officer and a member of the Board
of Directors of USG. Accordingly, Mr. Karr has a substantial interest in approval of the Merger. The other Members of the Board
and executive officers of the Company do not have any interest in any that is not shared by all other shareholders of the Company.
Anthony Lougee and David Moylan have employment
and severance agreements with Dataram which include Change in Control provisions. These agreements provide Mr. Lougee and Mr. Moylan
with additional compensation upon the occurrence of certain conditions following a change in control. The Merger will constitute
a change in control under the respective agreements. See “The Merger – Interests of Certain Directors and Executive
Officers.”
MATERIAL
U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
Generally
The
following discussion summarizes the material U.S. federal income tax consequences of the Merger to U.S. holders (as defined below)
of USG capital stock. This discussion is based on the Internal Revenue Code of 1986, as amended (the “Code”), Treasury
Regulations, administrative pronouncements and judicial decisions currently in effect, all of which are subject to change, possibly
with retroactive effect. Any such change could affect the accuracy of this discussion.
This discussion assumes you hold your shares
of USG capital stock as capital assets within the meaning of
Section 1221 of the Code. This
discussion does not address all aspects of U.S. federal income taxation that may be relevant to you in light of your particular
circumstances or to U.S. holders of USG capital stock subject to special treatment under the federal income tax laws such as:
|
·
|
tax-exempt organizations;
|
|
·
|
financial institutions;
|
|
·
|
dealers in securities or foreign currency;
|
|
·
|
persons that hold USG capital stock as part of a straddle,
hedge, constructive sale or other integrated security transaction;
|
|
·
|
persons that have a functional currency other than the U.S.
dollar;
|
|
·
|
investors in pass-through entities; or
|
|
·
|
persons who acquired their USG capital stock through the
exercise of options or otherwise as compensation or through a tax-qualified retirement plan.
|
Further,
this discussion does not consider the potential effects of any state, local or foreign tax laws or U.S. federal tax laws other
than federal income tax laws.
This
discussion is not intended to be tax advice to any particular holder of USG capital stock. Tax matters regarding the
Merger are complicated, and the tax consequences of the Merger to you will depend on your particular situation. You
should consult your own tax advisor regarding the specific tax consequences to you of the Merger, including the applicability and
effect of federal, state, local and foreign income and other tax laws.
For purposes
of this discussion, you are a “U.S. holder” if you beneficially own USG capital stock and you are:
|
·
|
a
citizen or resident of the United States for federal income tax purposes;
|
|
·
|
a c
orporation, or other entity taxable as a corporation for U.S. federal income
tax purposes, created or organized under the laws of the United States or any of its political subdivisions;
|
|
·
|
a t
rust, if (i) a U.S. court is able to exercise primary
supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions
of the trust or (ii) the trust has a valid election in effect under applicable Treasury regulations to be treated as a U.S. person;
or
|
|
·
|
an
estate that is subject to U.S. federal income tax on its income regardless
of its source.
|
If
an entity classified as a partnership for U.S. federal income tax purposes holds USG capital stock, the tax treatment of a partner
generally will depend upon the status of the partner and the activities of the partnership.
Partners of partnerships
holding USG capital stock are urged to consult their own tax advisors.
Neither
Dataram nor USG have requested a ruling from the Internal Revenue Service (the “IRS”) with respect to any of the U.S.
federal income tax consequences of the Merger and, as a result, there can be no assurance that the IRS will not disagree with any
of the conclusions described below. It is the Company’s understanding that the Merger will, under current law,
constitute a tax-free reorganization under Section 368(a) of the Code, and Dataram and USG will each be a party to the reorganization
within the meaning of Section 368(b) of the Code. This understanding is not binding on the IRS or any court.
The discussion
below summarizes the material U.S. federal income tax consequences to a U.S. holder of USG capital stock resulting from the qualification
of the Merger as reorganization within the meaning of Section 368(a) of the Code.
U.S. Federal Income
Tax Consequences of the Merger to U.S. Holders
As a tax-free
reorganization, it is the Company’s understanding that the Merger will have the following federal income tax consequences
for U.S. holders of USG capital stock:
|
1.
|
No gain or loss will be recognized by U.S. holders of USG capital stock as a result of
the exchange of such shares for the Merger Consideration pursuant to the Merger.
|
|
2.
|
The tax basis of the Merger Consideration received by each
U.S. holder of USG capital stock will equal the tax basis of such U.S. holder’s shares of USG capital stock exchanged in
the Merger.
|
|
3.
|
The holding period for the Merger Consideration received by each U.S. holder of USG capital
stock will include the holding period for the shares of USG capital stock of such U.S. holder exchanged in the Merger.
|
Reporting and Retention
Requirements
If you
receive the Merger Consideration as a result of the Merger, you are required to retain certain records pertaining to the Merger
pursuant to the Treasury Regulations under the Code. If you are a “significant holder” (as defined in the
Treasury Regulations under the Code) of USG capital stock, you must file with your U.S. federal income tax return for the year
in which the Merger takes place a statement setting forth certain facts relating to the Merger.
You are urged
to consult your tax advisors concerning potential reporting requirements.
RISK
FACTORS
The Company
and its shareholders are subject to various risks associated with the Merger including the following risks:
|
·
|
USG is a new company with a short operating history and has
a history of losses;
|
|
·
|
Since USG has a limited operating history, it is difficult for potential investors to evaluate
its business;
|
|
·
|
Exploring for gold is an inherently speculative business;
|
|
·
|
USG’s
business is subject to extensive environmental regulations which may
make exploring for or mining prohibitively expensive, and which may change at any time;
|
|
·
|
USG may be denied the government licenses and permits which it needs to explore on its properties;
|
|
·
|
The values of USG’s properties are subject to volatility in the price of gold and any other
deposits USG may seek or locate;
|
|
·
|
USG’s property titles may be challenged and it is not insured against any challenges, impairments
or defects to its mineral claims or property titles;
|
|
·
|
Possible amendments to the General Mining Law could make it more difficult or impossible for USG to execute its business plan;
|
|
·
|
Market forces or unforeseen developments may prevent USG from obtaining the supplies and equipment
necessary to explore for gold and other resources;
|
|
·
|
USG may not be able to maintain the infrastructure necessary to conduct exploration activities;
and
|
|
·
|
USG does not carry any property or casualty insurance and
although the Company anticipates purchasing a comprehensive insurance policy on behalf of USG at or prior to the closing of the
Merger, there can be no assurance that USG will be insured. Even if USG does obtain insurance, it may not cover all of the risks
associated with its operations.
|
These
risks are discussed in greater detail under the section entitled “Risk Factors” in this proxy statement/prospectus.
The Company encourages you to read and consider all of these risks,
together with the financial and other information contained
in this prospectus, carefully, If any of the risks actually occurs, our business, prospects, financial condition and results of
operations could be adversely affected. In that case, the value of our common stock would likely decline and you may lose all or
a part of your investment.
REGULATORY APPROVALS
The Company
must comply with applicable federal and state securities laws and the rules and regulations of The NASDAQ Stock Market LLC in connection
with the consummation of the Merger and the issuance of the Merger Consideration and the filing of this proxy statement/prospectus
with the SEC.
NO APPRAISAL RIGHTS
Under
the Nevada Revised Statutes (“NRS”) and our charter documents, holders of our Common Stock and Series D Preferred Stock
will not be entitled to statutory rights of appraisal, commonly referred to as dissenters’ rights or appraisal rights (i.e.,
the right to seek a judicial determination of the “fair value” of their shares and to compel the purchase of their
shares for cash in that amount) with respect any of the proposals. For more information about such rights, see the provisions of
Section 92A.390 of the NRS and the section entitled “The Merger—Appraisal Rights” in this proxy statement/prospectus.
COMPARISON OF SHAREHOLDER RIGHTS
Both the
Company and USG are incorporated under the laws of the State of Nevada and accordingly, the rights of the shareholders of each
are currently, and will continue to be, governed by the NRS. If the Merger is consummated, USG shareholders will become shareholders
of the Company, and their rights will be governed by the NRS, the bylaws of the Company and, assuming Proposal 2 is approved by
the Company’s shareholders at the Special Meeting, the Articles of Incorporation of the Company, as amended. The rights of
the Company’s shareholders contained in the Company’s bylaws and Articles of Incorporation, as amended, differ from
the rights of USG shareholders under the Amended and Restated Articles of Incorporation and bylaws of USG, as more fully described
under the section entitled “Comparison of Rights of Holders of Dataram Stock and USG Stock” in this proxy statement/prospectus.
SELECTED HISTORICAL
AND UNAUDITED PRO FORMA CONDENSED
COMBINED FINANCIAL
DATA
The following tables
set forth selected historical consolidated financial data of the Company. The selected historical consolidated financial information
as of and for the years ended April 30, 2016 and 2015 has been derived from the Company’s audited historical consolidated
financial statements, and are contained in its Annual Report on Form 10-K for the fiscal year ended April 30, 2016, which is included
herein into this proxy statement/prospectus.
The selected unaudited
historical consolidated financial information of the Company as of and for the six month periods ended October 31, 2016 and 2015
has been derived from the Company’s unaudited historical consolidated financial statements in its quarterly report on Form
10-Q for the quarter ended October 31, 2016, which is incorporated herein into this proxy statement/prospectus.
The following information
is only a summary and should be read together with the Company’s management’s discussion and analysis of results of
operations and financial condition and the Company’s consolidated financial statements and the notes related thereto incorporated
herein into this proxy statement/ prospectus.
.
Selected
Historical Financial Data of Dataram
DATARAM CORPORATION AND SUBSIDIARIES
Balance Sheet Data (at period end)
(In thousands)
|
|
October 31,
2016
|
|
April 30,
2016
|
|
April 30,
2015
|
Current assets
|
|
$
|
2,996
|
|
|
$
|
4,261
|
|
|
$
|
4,656
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill
|
|
|
1,083
|
|
|
|
1,083
|
|
|
|
1,083
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
4,442
|
|
|
|
5,751
|
|
|
|
6,275
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
1,805
|
|
|
|
2,859
|
|
|
|
4,158
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders' equity
|
|
|
2,637
|
|
|
|
2,892
|
|
|
|
2,117
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DATARAM CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
(In thousands, except share and per share
amounts)
|
|
Six Month Period Ended
|
|
Six Month Period Ended
|
|
Year Ended
|
|
Year Ended
|
|
|
October 31, 2016
|
|
October 31, 2015
|
|
April 30, 2016
|
|
April 30, 2015
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
9,594
|
|
|
$
|
13,388
|
|
|
$
|
25,182
|
|
|
$
|
28,258
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales
|
|
|
8,018
|
|
|
|
10,783
|
|
|
|
20,464
|
|
|
|
24,068
|
|
Engineering
|
|
|
98
|
|
|
|
100
|
|
|
|
191
|
|
|
|
768
|
|
Selling, general and administrative
|
|
|
2,581
|
|
|
|
2,684
|
|
|
|
5,767
|
|
|
|
6,171
|
|
Total operating expenses
|
|
|
10,696
|
|
|
|
13,567
|
|
|
|
26,422
|
|
|
|
31,007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations
|
|
|
(1,102
|
)
|
|
|
(178
|
)
|
|
|
(1,240
|
)
|
|
|
(2,749
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expense, net
|
|
|
(84
|
)
|
|
|
(109
|
)
|
|
|
(168
|
)
|
|
|
(1,077
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on sale of State NOL
|
|
|
—
|
|
|
|
190
|
|
|
|
190
|
|
|
|
—
|
|
Income tax expense
|
|
|
—
|
|
|
|
—
|
|
|
|
(3
|
)
|
|
|
(3
|
)
|
Net loss
|
|
|
(1,186
|
)
|
|
|
(97
|
)
|
|
|
(1,221
|
)
|
|
|
(3,829
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividend – Series A preferred stock
|
|
|
—
|
|
|
|
122
|
|
|
|
122
|
|
|
|
1,759
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss allocated to common shareholders
|
|
|
(1,186
|
)
|
|
|
(219
|
)
|
|
|
(1,343
|
)
|
|
|
(5,588
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share of common stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
($
|
0.40
|
)
|
|
($
|
0.21
|
)
|
|
($
|
1.07
|
)
|
|
($
|
6.60
|
)
|
Weighted average common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
2,942,591
|
|
|
|
1,036,141
|
|
|
|
1,255,414
|
|
|
|
846,170
|
|
The
following tables set forth selected historical consolidated financial data of U.S. Gold Corp. The selected historical consolidated
financial information as of and for the years ended April 30, 2016 and 2015 has been derived from U.S. Gold Corp.’s audited
historical consolidated financial statements, and are contained elsewhere in this proxy statement/prospectus.
The
selected unaudited historical consolidated financial information of U.S. Gold Corp. as of and for the nine month periods ended
October 31, 2016 and 2015 has been derived from its unaudited historical consolidated financial statements which are also included
elsewhere in this proxy statement/prospectus.
The
following information is only a summary and should be read together with U.S. Gold Corp.’s management’s discussion
and analysis of results of operations and financial condition and its consolidated financial statements and the notes related thereto
included elsewhere in this proxy statement/ prospectus.
Selected
Historical Financial Data of USG
U.S. GOLD CORP.
AND SUBSIDIARY
Balance Sheet Data (at period end)
(In thousands)
|
|
October 31,
2016
|
|
April 30,
2016
|
|
April 30,
2015
|
Current assets
|
|
$
|
9,343
|
|
|
$
|
320
|
|
|
$
|
45
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-current assets (mineral rights)
|
|
|
4,137
|
|
|
|
3,092
|
|
|
|
3,092
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
13,480
|
|
|
|
3,412
|
|
|
|
3,136
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
118
|
|
|
|
544
|
|
|
|
124
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders' equity
|
|
|
13,362
|
|
|
|
2,868
|
|
|
|
3,012
|
|
U.S. GOLD CORP. AND SUBSIDIARY
Consolidated Statements of Operations
(In thousands, except share and per share
amounts)
CONDENSED
CONSOLIDATED STATEMENTS OF OPERATIONS
|
|
Six Month Period Ended
|
|
Six Month Period Ended
|
|
Year Ended
|
|
Year Ended
|
|
|
October 31,
2016
|
|
October 31,
2015
|
|
April 30,
2016
|
|
April 30,
2015
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative
|
|
|
2,033
|
|
|
|
8
|
|
|
|
407
|
|
|
|
14
|
|
Total operating expenses
|
|
|
2,033
|
|
|
|
8
|
|
|
|
407
|
|
|
|
14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations
|
|
|
(2,033
|
)
|
|
|
(8
|
)
|
|
|
(407
|
)
|
|
|
(14
|
)
|
Total other expense, net
|
|
|
(4
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss allocated to common shareholders
|
|
|
(2,037
|
)
|
|
|
(8
|
)
|
|
|
(407
|
)
|
|
|
(14
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share of common stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
($
|
0.22
|
)
|
|
($
|
0.76
|
)
|
|
($
|
3.42
|
)
|
|
($
|
1.65
|
)
|
Weighted average common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
9,265,489
|
|
|
|
10,000
|
|
|
|
118,933
|
|
|
|
8,507
|
|
SELECTED
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The transaction
will be accounted for as a Reverse Business Combination, the acquisition of Dataram by USG under the acquisition method of accounting
in accordance with FASB ASC Topic 805, “Business Combinations”. The unaudited pro forma condensed combined financial
statements contained in this proxy statement/prospectus were prepared using the acquisition method of accounting. The selected
unaudited pro forma condensed combined balance sheet information is presented as if the transaction occurred on October 31, 2016,
plus pro forma adjustments. The selected unaudited pro forma condensed combined statement of operations information for the six
months ended October 31, 2016 and for the year ended April 30, 2016 is presented as if the transaction occurred on May 1, 2015.
The selected
unaudited pro forma condensed combined financial information is presented for information purposes only and is not intended to
represent or be indicative of the combined results of operation or financial position that USG would of reported had the transaction
been completed as of the date for the periods presented, and should not be taken as representative of USG’s consolidated
results of operations of financial condition following the completion of the transaction. In addition, the selected unaudited pro
forma condensed combined financial information is not intended to project future financial position or results of the combined
company. Future results may vary significantly from the results reflected because of various factors, including those discussed
in the section entitled “Risk Factors” beginning on page 38 of this proxy statement/prospectus. The following selected
unaudited pro forma condensed combined financial information should be read in conjunction with the section entitled “Unaudited
Pro Forma Condensed Financial Information” and related notes beginning on page 126 of this proxy statement/ prospectus.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
|
|
For the Six
|
|
|
For the Year
|
|
|
|
Months Ended
|
|
|
Ended
|
|
|
|
October 31, 2016
|
|
|
April 30, 2016
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
9,594
|
|
|
$
|
25,182
|
|
Cost of sales
|
|
|
8,018
|
|
|
|
20,464
|
|
Engineering
|
|
|
98
|
|
|
|
191
|
|
Selling, general and administrative
|
|
|
4,613
|
|
|
|
6,174
|
|
Net loss
|
|
|
(3,223
|
)
|
|
|
(1,628
|
)
|
Basic and diluted net loss per share
|
|
$
|
(0.06
|
)
|
|
$
|
(0.03
|
)
|
Weighted average common shares outstanding
|
|
|
50,308,790
|
|
|
|
50,308,790
|
|
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET DATA
|
|
As
of
|
|
|
October
31, 2016
|
|
|
|
Cash
|
|
$
|
9,064
|
|
Total assets
|
|
|
22,132
|
|
Total liabilities
|
|
|
1,922
|
|
Total stockholder's equity
|
|
|
20,210
|
|
MARKET PRICE AND
DIVIDEND INFORMATION
The
Company’s Common Stock is listed on The NASDAQ Capital Market under the symbol “DRAM”. The following table sets
forth, for the periods indicated, the high and low intraday prices per share of the Company’s Common Stock as reported by
The NASDAQ Capital Market.
Dataram Common Stock
|
|
2016
|
|
2015
|
|
|
High
|
|
Low
|
|
High
|
|
Low
|
First Quarter
|
|
$
|
9.60
|
|
|
$
|
5.55
|
|
|
$
|
9.57
|
|
|
$
|
7.14
|
|
Second Quarter
|
|
|
5.82
|
|
|
|
3.12
|
|
|
|
11.52
|
|
|
|
6.30
|
|
Third Quarter
|
|
|
4.47
|
|
|
|
1.59
|
|
|
|
8.16
|
|
|
|
4.23
|
|
Fourth Quarter
|
|
|
2.79
|
|
|
|
1.65
|
|
|
|
10.71
|
|
|
|
6.15
|
|
All prices have been adjusted
to reflect the reverse 1-for-3 stock split which was effective July 11, 2016.
The closing price of the
Company’s Common Stock on December 23, 2016, as reported on The NASDAQ Capital Market, was $1.58 per share.
Because
the market price of the Company’s Common Stock is subject to fluctuation, the market value of the shares of the Company’s
Common Stock that USG shareholders will be entitled to receive in the Merger may increase or decrease.
As
of *, 2016, the record date for the Special Meeting, the Company had approximately * holders of record of its Common Stock and
* holders of record of its Series D Preferred Stock. As of *, 2016, USG had * holders of record of its common stock and * holders
of record of its preferred stock. For detailed information regarding the beneficial ownership
of
certain shareholders of the Company upon consummation of the Merger, see the section entitled “Principal Shareholders
of Combined Company” in this proxy statement/prospectus.
USG
is a private company and its common stock and preferred stock are not publicly traded.
Dividends
The
Company does not anticipate paying dividends on shares of its common stock in the foreseeable future as the Board of Directors
intends to retain future earnings for use in the Company’s business. Any future determination as of the payment of dividends
on the Company’s common stock will depend upon the Company’s financial conditions, results of operations and such other
factors as the Board of Directors seems relevant. In addition, the Company’s financing agreement with Rosenthal & Rosenthal,
Inc. entered into as of November 6, 2013 contains covenants limiting the declaration and distribution of a dividend.
Any
determination to pay dividends subsequent to the Merger will be at the discretion of the Company’s then-current Board of
Directors and will depend upon a number of factors, including the Company’s results of operations, financial condition, future
prospects, contractual restrictions, restrictions imposed by applicable law and other factors the Company’s then-current
board of directors deems relevant.
Special
Dividend
It is a condition to the
consummation of the Merger that the Company’s Board of Directors shall have declared,
Dataram
shareholders as of a record date which is no less than five (5) business days prior to the Closing Date, to be eligible to receive
a special dividend, a right entitling each shareholder to a proportionate ownership interest, record or beneficial, equal to their
ownership interest in the Company, of the Company assets or the proceeds therefrom, as, when and if the Board of Directors of the
Company elects to divest such Company assets within eighteen (18) months of the closing date.
The special dividend will
be a distribution equal to the value of the net proceeds of any asset sale of the legacy assets. The distribution to the
legacy shareholders will be defined as the purchase price of the assets of the legacy business, less all costs directly related
to the transaction. Should the legacy business have more liabilities than assets and the assumption of such liabilities constitute
the purchase price, no distribution will be made. The distribution may be made in cash, stock, or a combination thereof,
as received by the Company from the purchaser of the legacy assets. The costs of the transaction to be deducted from the
purchase price to determine the net proceeds shall include:
|
1.
|
Sale costs (including applicable legal and accounting fees tied directly to the sale), the Company’s
investment banker and broker commissions tied directly to the sale, employee bonuses paid specifically in connection with the sale
of the assets;
|
|
2.
|
Costs incurred by a third party administrator overseeing / managing the sale of the assets, if
any. This shall not include the costs of the Company’s employee’s managing the legacy business;
|
|
3.
|
Legacy business employee benefits triggered solely by the sale of the legacy assets, such as employee
severance;
|
|
4.
|
Debt repayment of the legacy business by the Company, if required as a condition of sale; and
|
|
5.
|
Shareholder distribution costs for special dividend.
|
Series D Preferred Shares Dividend Payable
On August 5, 2016, the Company issued and sold 3,699 shares of Series D Preferred Stock convertible into an
aggregate of 369,853 shares of common stock to accredited investors, with each share of Series D convertible Preferred Stock initially
convertible into 100 shares of Common Stock. Upon the consummation of a “Qualified Transaction” (as define in the governing
Certificate of Designation) within 120 days of the sale of the Series D Preferred Stock, or at the discretion of the Board of Directors
thereafter each share of Series D Preferred Stock will be entitled to receive a special dividend equal to one additional share
of Series D Preferred Stock.
USG
has never paid or declared any cash dividends on its common stock. If the Merger does not occur, USG does not anticipate paying
any cash dividends on its common stock in the foreseeable future as USG
intends to retain future earnings for use in its
business.
Any future determination to pay dividends will be at the discretion of USG’s
board of directors and will depend upon a number of factors, including its results of operations, financial condition, future prospects,
contractual restrictions, restrictions imposed by applicable law and other factors USG’s board of directors deems relevant.
RISK FACTORS
The
combined organization will be faced with a market environment that cannot be predicted and that involves significant risks, many
of which will be beyond its control. In addition to the other information contained in this proxy statement/prospectus, you should
carefully consider the material risks described below before deciding how to vote your shares of stock. In addition, you should
read and consider the risks associated with the business of Dataram because these risks may also affect the combined company—these
risks can be found in Dataram’s Annual Report on Form 10-K, as updated by subsequent Quarterly Reports on Form 10-Q,
all of which are filed with the SEC. You should also read and consider the other information in this proxy statement/prospectus
and the other documents incorporated by reference into this proxy statement/prospectus. Please see the section entitled “Where
You Can Find More Information” in this proxy statement/prospectus.
Certain Risk Factors Relating to USG
The Merger with USG and the issuance
of the Merger Consideration will result in a change of control of the Company and the Company will be required to submit a new
application under NASDAQ’s original listing standards. If such application is not approved by NASDAQ, the Company’s
Common Stock may be delisted from The NASDAQ Capital Market.
In connection with the
Merger, the Company will issue 45,880,820 shares of Common Stock including Common Stock issuable upon conversion of its Series
C Convertible Preferred Stock (excluding shares issuable upon warrants and options issued in connection with the Merger). The
Company believes that the issuance of the Merger Consideration will result in a change of control of the Company. NASDAQ
Rule 5110(a) provides that a Company must apply for initial listing in connection with a transaction whereby a company combines
with a non-NASDAQ entity, resulting in a change of control of such company and potentially allowing the non-NASDAQ entity to effectively
obtain NASDAQ listing. In determining whether a change of control has occurred, NASDAQ considers all relevant factors
including, changes in management, board of directors, voting power, ownership and financial structure of the Company. If
the Company’s initial listing application is not approved by NASDAQ pursuant to Rule 5110(a), the Company’s Common
Stock may be delisted from The NASDAQ Capital Market.
USG
is
a new company with a short operating history, a history of losses,
and may never achieve any meaningful revenue
.
USG
was formed in February 2014. Its operating history consists of starting its preliminary exploration activities. USG has no income-producing
activities from mining or exploration and has already incurred losses because of the expenses it has incurred in acquiring the
rights to explore its properties and starting its preliminary exploration activities. USG incurred a net loss of approximately
$14,000 and approximately $407,000 for the year ended April 30, 2015 and 2016, respectively and has not generated any revenue.
USG expects that its operating expenses and net losses will increase dramatically as it proceeds with exploration and development
of the Copper King and Keystone mining projects. Exploring for gold and other minerals or resources is an inherently speculative
activity
and there is no assurance we will be able to develop an economically feasible operating plan for either the Copper
King of Keystone properties.
There is a strong possibility that USG will not find any commercially
exploitable gold or other deposits on its properties. Because USG is an exploration company, it may never achieve any meaningful
revenue.
USG must make annual lease payments,
advance royalty and royalty payments and claim maintenance payments or we will lose our rights to our property.
USG is required under the
terms of the leases covering some of our property interests to make annual lease payments and advance royalty and royalty payments
each year. USG is also required to make annual claim maintenance payments to the U.S. Bureau of Land Management (“BLM”)
and pay a fees to the counties in which USG operates in order to maintain our rights to explore and, if warranted, to develop our
unpatented mining claims. If USG fails to meet these obligations, USG will lose the right to explore for gold and other minerals
on these properties.
Since USG has a limited operating history,
it is difficult for potential investors to evaluate its business.
USG
’s
limited operating history makes it difficult for potential investors to evaluate its business or prospective operations. Since
its formation,
USG
has not generated any revenues. As an early stage company,
USG
is subject to all the risks inherent in the initial organization, financing, expenditures, complications and delays inherent in
a new business. Investors should evaluate an investment in
USG
in light of the uncertainties
encountered by developing companies in a competitive environment.
USG
’s business
is dependent upon the implementation of its business plan. There can be no assurance that its efforts will be successful or that
USG
will ultimately be able to attain profitability.
USG is an exploration stage company and
has only recently commenced exploration activities on our claims. We reported a net loss for the year ended April 30, 2015
and April 30, 2016 and expect to incur operating losses for the foreseeable future.
The Company’s evaluation
of USG’s Copper King and Keystone properties are primarily based on historical data and on new exploration data that we have
developed since 2016, supplemented by historical exploration data. USG’s plans for mining and processing activities at the
Copper King property are in their early stages and preliminary, as USG’s exploration programs on the Copper King and Keystone
properties. Accordingly, USG is not yet in a position to estimate expected amounts of minerals, yields or values or evaluate the
likelihood that business will be successful. USG has not earned any revenues from mining operations. The likelihood of success
must be considered in light of the problems, expenses, difficulties, complications and delays encountered in connection with the
exploration of the mineral properties and commencement of mining activities that USG plans to undertake. These potential problems
include, but are not limited to, unanticipated problems relating to exploration, costs and expenses that may exceed current estimates
and the requirement for external funding to continue USG’s business. Prior to completion of USG’s exploration stage,
USG anticipates that the Company will incur increased operating expenses without realizing any revenues.
USG incurred a net loss
for the year ended April 30, 2015 and 2016 and the period ending October 31, 2016. USG expects to incur significant losses
into the foreseeable future. Based on USG’s current cash position and burn rate, the Company can fund basic operations through
2018, but expect to require additional external financing to fund operations and exploration beyond 2018. If USG decides to pursue
a plan to commence mining and processing at either Copper King or Keystone, additional external financing would be required. If
the Company is not able to raise external funding, and eventually generate significant revenues from claims and properties, the
Company will not be able to earn profits or continue operations. USG has no production history upon which to base any assumption
as to the likelihood that the Company will prove successful, and it is uncertain that it will generate any operating revenues or
ever achieve profitable operations. If USG is unsuccessful in addressing these risks, the business will most likely fail.
If USG decides to pursue the commencement
of mining and processing activities at Copper King, unanticipated problems or delays may negatively affect our business and financial
condition.
If USG were to decide to
pursue the commencement of mining and processing activities at either Keystone or Copper King, additional external financing would
be required. USG would be required to complete additional studies and obtain necessary permits, develop formal supporting
infrastructure, establish a processing facility, obtain mining equipment (which could be through purchase, lease, contract mining
or a combination of these), hire employees for the mine and the processing plant to include senior employees, purchase materials
and supplies, commence mining, leaching and processing activities, and continue these activities as well as the corporate activities
currently conducted for a number of months until sufficient positive cash flow is produced by gold sales to fund all of these ongoing
activities. USG may suffer significant delays or cost overruns as a result of a variety of factors, such as increases in the prices
of materials, mining or processing problems, unanticipated variations in mined materials, shortages of workers or materials, transportation
constraints, adverse weather, equipment failures, fires, damage to or destruction of property and equipment, environmental problems,
unforeseen difficulties or labor issues, any of which could delay or prevent us from commencing or ramping up mining and processing.
If USG’s start-up were prolonged or delayed or our costs were higher than anticipated, USG could be unable to obtain sufficient
funds to cover the additional costs, and itsbusiness could experience a substantial setback. Prolonged problems could have a material
adverse effect on the USG business, consolidated financial condition or results of operations and threaten our viability.
Exploring for gold and other minerals
is inherently speculative, involves substantial expenditures, and is frequently non-productive.
Mineral exploration (currently
USG’s only business), and gold exploration in particular, is a business that by its nature is very speculative. USG may not
be able to establish mineral reserves on our properties or be able to mine any gold or any other minerals on a profitable basis.
There is a strong possibility that USG will not discover gold or any other resources which can be mined or extracted at a profit.
Although the Copper King Project has known gold deposits, the deposits may not be of the quality or size necessary for it to make
a profit from actually mining it. Few properties that are explored are ultimately developed into producing mines. Unusual or unexpected
geological formations, geological formation pressures, fires, power outages, labor disruptions, flooding, explosions, cave-ins,
landslides and the inability to obtain suitable or adequate machinery, equipment or labor are just some of the many risks involved
in mineral exploration programs and the subsequent development of gold deposits.
The mining industry is capital intensive
and USG and we may be unable to raise the necessary funding to finance the Copper King and Keystone exploration programs.
USG does not have sufficient
capital to fund its exploration programs for the Copper King Project or the Keystone Project as they are currently planned or to
fund the acquisition and exploration of new properties. USG will require additional funding to continue its planned exploration
programs.
USG received approximately
$12.0 million in gross proceeds from its private placement and intends to use the proceeds as described below. The amount and timing
of the use of proceeds will vary depending on a number of factors including, but not limited to, the amount raised in the private
placement, the amount of cash generated or used by USG’s operations, and the success of exploration efforts. USG’s
management will have broad discretion in the allocation of the net proceeds of this offering. After the merger, the anticipated
use of the net proceeds is as follows:
|
USD Amount Assuming New Maximum Offering
|
Percent of Maximum
|
|
|
|
USE OF PROCEEDS
|
|
|
Placement Fee
(1)
|
$1,200,000
|
10.00%
|
Placement Expenses
(2)
|
$240,000
|
2.00%
|
Keystone Project
(3)
|
$2,500,000
|
20.8%
|
Copper King Project
(4)
|
$3,500,000
|
29.2%
|
General, Administrative and Working Capital
(5)
|
$1,515,000
|
12.6%
|
Property Acquisitions and Additional Exploration
(6)
|
$2,760,000
|
23.00%
|
Repayment of Copper King LLC Note
(7)
|
$285,000
|
2.4%
|
TOTAL APPLICATION OF PROCEEDS
|
$12,000,000
|
100.00%
|
|
1.
|
Placement Fee: The private placement fee is ten percent (10%) of the gross offering proceeds from
Placement Agent Investors.
|
|
2.
|
Placement Expenses: The private placement expenses are a non-allocable expense reimbursement of
2% of the gross offering proceeds raised from placement agent investors.
|
|
3.
|
Keystone Project: USG intends to use approximately $2,500,000 of offering proceeds for exploration
on the Keystone Project. This includes compensation for the VP Exploration, David Mathewson, consulting fees, geophysical work,
exploratory drilling, and annual and other fees for legal maintenance of the mining claims. USG’s budget calls for approximately
$500,000 in expenditures on the Keystone Project in the first year, and approximately $2,000,000 in expenditures in the second
year.
|
|
4.
|
Copper King Project: USG plans to spend approximately $1,750,000 per year for the next two years
for claims maintenance, exploration, drilling, and other expenditures related to the Copper King Project.
|
|
5.
|
General, Administrative, and Working Capital: USG plans to use approximately $1,515,000 over the
next two years for general and administrative expenses and working capital.
|
|
6.
|
Property Acquisitions and Additional Exploration: USG intends to use up to $2,760,000 for the acquisition
of additional precious metals properties, and/or to pursue additional and more intensive exploration activities on the Keystone
Project, to include an accelerated and more intensive drilling program.
|
|
7.
|
Repayment of Copper King LLC note: USG intends to use $285,000 to repay the balance due under its
outstanding note to Copper King LLC.
|
If USG decides to pursue
the commencement of production at either of its properties, additional external financing would be required. In addition, even
if USG does not decide to pursue the commencement of production at these properties, USG will be required to raise additional
funds in order to finance its operations. USG may be unable to secure additional financing on terms acceptable to USG, or at all.
USG’s inability to raise additional funds would prevent USG from achieving its business objectives and would have a negative
impact on our business, financial condition, results of operations and the value of our securities. If USG raises additional funds
by issuing additional equity or convertible debt securities, the ownership of existing shareholders may be diluted and the securities
that we may issue in the future may have rights, preferences or privileges senior to those of the current holders of our common
stock. Such securities may also be issued at a discount to the market price of our common stock, resulting in possible further
dilution to the book value per share of common stock. If we raise additional funds by issuing debt, we could be subject to debt
covenants that could place limitations on our operations and financial flexibility.
USG does not know if its properties contain
any gold or other minerals that can be mined at a profit.
Although the properties
on which
USG
has the right to explore for gold are known to have deposits of gold,
the Company does not know if any deposits of gold or other minerals can be mined at a profit. Whether a gold or other mineral deposit
can be mined at a profit depends upon many factors. Some but not all of these factors include: the particular attributes of the
deposit, such as size, grade and proximity to infrastructure; operating costs and capital expenditures required to start mining
a deposit; the availability and cost of financing; the price of gold or other minerals which is highly volatile and cyclical; and
government regulations, including regulations relating to prices, taxes, royalties, land use, importing and exporting of minerals
and environmental protection.
USG is obligated to pay
production royalties on certain of its mineral production, including a royalty of 5% to 10% on production, based on FOB Mine Value
per Ton for the Copper King site to the State of Wyoming, with ‘Mine Value’ referring to value of concentrate being
shipped, after deduction of production costs. Also, the State of Wyoming may require that all waste material mined and not removed
from the premises shall, as mining progresses, be used to fill the pits and leveled unless consent of the lessor is otherwise obtained,
so that at the expiration, surrender, or termination of the lease, the land will reasonably approximate its original configuration
and with a minimum of permanent damage to the surface.
USG is obligated to pay
Nevada Gold Ventures LLC (David Mathewson) an underlying production royalty on the Keystone Property, as follows: (i) a one-half
percent (0.5%) underlying production royalty of the Net Revenues of the net smelter returns from ores, metals, minerals and materials
produced and sold from the UNR Claims, which claims are specifically defined in Article 1 under “UNR Claims” and (ii)
a three and one-half percent (3.5%) underlying production royalty of the Net Revenues of the net smelter returns of the Valuable
Minerals sold from the remaining mining claims comprising the Keystone Property.
These obligations increase
USG’s costs of production and make our ability to operate profitably more difficult.
USG is a junior gold exploration company
with no mining activities or operations and USG may never have any mining activities or operations in the future.
USG
’s
primary business is exploring for gold and, to a lesser extent, other minerals. In the event that
USG
discovers commercially exploitable gold or other deposits, USG will not be able to make any money from mining activities unless
the gold or other deposits are actually mined, or we sell our interest. Accordingly,
USG
will need to seek additional capital through debt or equity financing, find some other entity to mine its properties on its behalf,
enter into a joint venture or other arrangements with a third party, mine them itself, or sell or lease the property or rights
third parties.
Mine development projects
typically require a number of years and significant expenditures during the development phase before production is possible. Such
projects could experience unexpected problems and delays during development, construction and mine start up. Mining operations
in the United States are subject to many different federal, state and local laws and regulations, including stringent environmental,
health and safety laws. If and when we assume operational responsibility for mining on USG’s properties, it is possible that
USG will be unable to comply with current or future laws and regulations, which can change at any time. It is possible that changes
to these laws will be adverse to any potential mining operations. Moreover, compliance with such laws may cause substantial delays
and require capital outlays in excess of those anticipated, adversely affecting any potential mining operations. USG’s future
mining operations, if any, may also be subject to liability for pollution or other environmental damage. It is possible that USG
will choose to not be insured against this risk because of high insurance costs or other reasons.
USG’s business is subject to extensive
environmental regulations which may make exploring for or mining prohibitively expensive, and which may change at any time.
All of USG operations are
subject to extensive environmental regulations that can substantially delay exploration and make exploration expensive or prohibit
it altogether. USG may be subject to potential liabilities associated with the pollution of the environment and the disposal of
waste products that may occur as the result of exploring and other related activities on USG’s properties. USG may have to
pay to remedy environmental pollution, which may reduce the amount of money that USG have available to use for exploration or other
activities, and adversely affect its financial position. If USG is unable to fully remedy an environmental problem, USG might be
required to suspend operations or to enter into interim compliance measures pending the completion of the required remedy. If a
decision is made to mine the Company’s properties and USG retains any operational responsibility for doing so, USG’s
potential exposure for remediation may be significant, and this may have a material adverse effect upon USG’s business and
financial position. .
USG
has not purchased insurance for potential environmental risks (including potential liability for pollution or other hazards associated
with the disposal of waste products from its exploration activities). However, if
USG
mines one or more of its properties and retains operational responsibility for mining, then such insurance may not be available
to it on reasonable terms or at a reasonable price. All of its exploration and, if warranted, development activities may be subject
to regulation under one or more local, state and federal environmental impact analyses and public review processes. It is possible
that future changes in applicable laws, regulations and permits or changes in their enforcement or regulatory interpretation could
have significant impact on some portion of our business, which may require our business to be economically re-evaluated from time
to time. These risks include, but are not limited to, the risk that regulatory authorities may increase bonding requirements beyond
its financial capability. Inasmuch as posting of bonding in accordance with regulatory determinations is a condition to the right
to operate under all material operating permits, increases in bonding requirements could prevent operations even if
USG
is in full compliance with all substantive environmental laws.
The government licenses and permits which
USG needs to explore on our property may take too long to acquire or cost too much to enable USG to proceed with exploration. In
the event that USG discovers commercially exploitable deposits, USG may face substantial delays and costs associated with securing
the additional government licenses and permits that could preclude USG’s ability to develop the mine and mine its properties.
Exploration activities
usually require the granting of permits from various governmental agencies. For example, exploration drilling on unpatented mineral
claims requires a permit to be obtained from the BLM, which may take several months or longer to grant the requested permit. Depending
on the size, location and scope of the exploration program, additional permits may also be required before exploration activities
can be undertaken. Prehistoric or Indian grave yards, threatened or endangered species, archeological sites or the possibility
thereof, difficult access, excessive dust and important nearby water resources may all result in the need for additional permits
before exploration activities can commence.
As with all permitting processes, there is
substantial uncertainty about when and if the permits will be issued. There is the risk that unexpected delays and excessive costs
may be experienced in obtaining required permits. The needed permits may not be granted or could be challenged by third parties,
which could result in protracted litigation that could cause substantial delays, or may be granted in an unacceptable timeframe
or cost too much. Additionally, proposed mineral exploration and mining projects can become controversial and be opposed by nearby
landowners and communities, which can substantially delay and interfere with the permitting process. Delays in or inability to
obtain necessary permits would result in unanticipated costs, which may result in serious adverse effects upon our business.
The values of USG’s properties
are subject to volatility in the price of gold and any other deposits USG may seek or locate.
USG
’s
ability to obtain additional and continuing funding, and its profitability in the unlikely event it ever commences mining operations
or sells the rights to mine, will be significantly affected by changes in the market price of gold and other mineral deposits.
Gold and other mineral prices fluctuate widely and are affected by numerous factors, all of which are beyond
USG
’s
control. Some of these factors include:
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Fluctuation in the supply of, demand and market price for gold;
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Mining activities of USG’s competitors;
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the sale or purchase of gold by central banks, and for in investment purposes by individuals and
financial institutions;
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currency exchange rates;
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inflation or deflation;
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fluctuation in the value of the United States dollar and other currencies;
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global and regional supply and demand, including investment, industrial and jewelry demand; and
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political and economic conditions of major gold or other mineral producing countries.
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The price of gold or other
minerals have fluctuated widely in recent years, and a decline in the price of gold or other minerals could cause a significant
decrease in the value of our properties, limit our ability to raise money, and render continued exploration and development of
its properties impracticable. If that happens, then U.S Gold could lose its rights to its properties and be compelled to sell some
or all of these rights. Additionally, the future development of its properties beyond the exploration stage is heavily dependent
upon the level of gold prices remaining sufficiently high to make the development of our properties economically viable. You may
lose your investment if the price of gold decreases. The greater the decrease in the price of gold, the more likely it is that
you will lose money.
USG’s property titles may be challenged
and it is not insured against any challenges, impairments or defects to our mineral claims or property titles. USG has not fully
verified title to its properties.
USG’s unpatented
Keystone Claims were located, created and are maintained in accordance with the federal General Mining Law of 1872. Unpatented
claims are unique U.S. property interests and are generally considered to be subject to greater title risk than other real property
interests because the validity of unpatented claims is often uncertain. This uncertainty arises, in part, out of the complex federal
and state laws and regulations with which the owner of an unpatented claim must comply in order to locate and maintain a valid
claim. Moreover, if USG discovers mineralization that is close to the claim boundaries, it is possible that some or all of the
mineralization may occur outside the boundaries on lands that USG does not control. In such a case USG would not have the right
to extract those minerals. USG has obtained a title report on its Keystone Claims, but cannot be certain that all defects or conflicts
with its title to those claims have been identified. . USG does not have title reports or opinions covering all of our properties.
The uncertainty resulting from not having title opinions for all of USG’s properties or having detailed claim surveys on
all of USG’s properties leaves USG exposed to potential title defects. Further, USG has not obtained title insurance regarding
its purchase and ownership of the Keystone Claims. Defending any challenges to its property titles may be costly, and may divert
funds that could otherwise be used for exploration activities and other purposes.
In addition, unpatented
claims are always subject to possible challenges by third parties or contests by the federal government, which, if successful,
may prevent us from exploiting its discovery of commercially extractable gold. Challenges to its title may increase its costs of
operation or limit its ability to explore on certain portions of its properties.
USG
is not insured against challenges, impairments or defects to its property titles, nor does
USG
intend to carry extensive title insurance in the future.
Possible amendments to the General Mining
Law could make it more difficult or impossible for USG to execute its business plan.
U.S. Congress has considered
proposals to amend the General Mining Law of 1872 that would have, among other things, permanently banned the sale of public land
for mining. The proposed amendment would have expanded the environmental regulations to which
USG
is subject and would have given Indian tribes the ability to hinder or prohibit mining operations near tribal lands. The proposed
amendment would also have imposed a royalty of 8% of gross revenue on new mining operations located on federal public land,
which would have applied to substantial portions of its properties. The proposed amendment would have made it more expensive or
perhaps too expensive to recover any otherwise commercially exploitable gold deposits which
USG
may find on its properties. While at this time the proposed amendment is no longer pending, this or similar changes to the law
in the future could have a significant impact on
USG
’s business model.
In recent years, the U.S.
Congress has considered a number of proposed amendments to the General Mining Law, as well as legislation that would make comprehensive
changes to the law. Although no such legislation has been adopted to date, there can be no assurance that such legislation will
not be adopted in the future. If adopted, such legislation, if it includes concepts that have been part of previous legislative
proposals, could, among other things, (i) adopt the limitation on the number of millsites that a claimant may use, discussed
below, (ii) impose time limits on the effectiveness of plans of operation that may not coincide with mine life, (iii) impose
more stringent environmental compliance and reclamation requirements on activities on unpatented mining claims and millsites, (iv) establish
a mechanism that would allow states, localities and Native American tribes to petition for the withdrawal of identified tracts
of federal land from the operation of the General Mining Law, (v) allow for administrative determinations that mining would
not be allowed in situations where undue degradation of the federal lands in question could not be prevented, (vi) impose
royalties on gold and other mineral production from unpatented mining claims or impose fees on production from patented mining
claims, and (vii) impose a fee on the amount of material displaced at a mine. Further, it could have an adverse impact on earnings
from our operations, could reduce estimates of any reserves we may establish and could curtail our future exploration and development
activity on our unpatented claims.
USG’s ability to
conduct exploration, development, mining and related activities may also be impacted by administrative actions taken by federal
agencies. With respect to unpatented millsites, for example, the ability to use millsites and their validity has been subject to
greater uncertainty since 1997. In November of 1997, the Secretary of the Interior (appointed by President Clinton) approved
a Solicitor’s Opinion that concluded that the General Mining Law imposed a limitation that only a single five-acre millsite
may be claimed or used in connection with each associated and valid unpatented or patented lode mining claim. Subsequently, however,
on November 7, 2003, the new Secretary of the Interior (appointed by President Bush) approved an Opinion by the Deputy Solicitor
which concluded that the mining laws do not impose a limitation that only a single five-acre millsite may be claimed in connection
with each associated unpatented or patented lode mining claim. Current federal regulations do not include the millsite limitation.
There can be no assurance, however, that the Department of the Interior will not seek to re-impose the millsite limitation at some
point in the future.
In addition, a consortium
of environmental groups has filed a lawsuit in the United District Court for the District of Columbia against the Department of
the Interior, the Department of Agriculture, the BLM, and the USFS, asking the court to order the BLM and USFS to adopt the five-acre
millsite limitation. That lawsuit also asks the court to order the BLM and the USFS to require mining claimants to pay fair market
value for their use of the surface of federal lands where those claimants have not demonstrated the validity of their unpatented
mining claims and millsites. If the plaintiffs in that lawsuit were to prevail, that could have an adverse impact on the Company’s
ability to use our unpatented millsites for facilities ancillary to its exploration, development and mining activities, and could
significantly increase the cost of using federal lands at USG’s properties for such ancillary facilities.
Market forces or unforeseen developments
may prevent USG from obtaining the supplies and equipment necessary to explore for gold and other minerals.
In general, both gold exploration
and mineral exploration are very competitive businesses. Competitive demands for contractors and unforeseen shortages of supplies
and/or equipment could result in the disruption of
USG
’s planned exploration
activities. Current demand for exploration drilling services, equipment and supplies is robust and could result in suitable equipment
and skilled manpower being unavailable at scheduled times for its exploration program. Fuel prices are extremely volatile as well.
USG
will attempt to locate suitable equipment, materials, manpower and fuel if sufficient
funds are available. If
USG
cannot find the equipment and supplies needed for its
various exploration programs, it may have to suspend some or all of them until equipment, supplies, funds and/or skilled manpower
become available. Any such disruption in its activities may adversely affect its exploration activities and financial condition.
Our directors and
executive officers lack significant experience or technical training in exploring for precious and base metal deposits and in developing
mines.
Most of USG’s directors
and executive officers lack significant experience or technical training in exploring for precious and base metal deposits and
in developing mines. Accordingly, USG’s COO (Chief Operating Officer) and VP and Head of Nevada Exploration have significant
experience and expertise in environmental permitting and regulatory matters for developing and operating mines and both has significant
operating experience with mine operations, our management may not be fully aware of many of the other specific requirements related
to working within this industry. Their decisions and choices may not take into account standard engineering or managerial approaches
that mineral exploration companies commonly use. Consequently, our operations, earnings, and ultimate financial success could suffer
irreparable harm due to some of USG’s management’s lack of experience in the mining industry.
USG may not be able to maintain the infrastructure
necessary to conduct exploration activities.
USG
’s
exploration activities depend upon adequate infrastructure. Reliable roads, bridges, power sources and water supply are important
factors which affect capital and operating costs. Unusual or infrequent weather phenomena, sabotage, government or other interference
in the maintenance or provision of such infrastructure could adversely affect
USG’s
exploration activities and financial condition.
USG’s exploration activities may
be adversely affected by the local climate or seismic events, which could prevent us from gaining access to our property year-round.
Earthquakes, heavy rains,
snowstorms, and floods could result in serious damage to or the destruction of facilities, equipment or means of access to our
property, or may otherwise prevent USG from conducting exploration activities on our property. There may be short periods of time
when the unpaved portion of the access road is impassible in the event of extreme weather conditions or unusually muddy conditions.
During these periods, it may be difficult or impossible for USG to access our property, make repairs, or otherwise conduct exploration
activities on them.
USG
does
not carry any property or casualty insurance, however it intends to carry such insurance in the future.
USG’s
business is subject to a number of risks and hazards generally, including but not limited to adverse environmental conditions,
industrial accidents, unusual or unexpected geological conditions, ground or slope failures, cave-ins, changes in the regulatory
environment and natural phenomena such as inclement weather conditions, floods and earthquakes. Such occurrences could result in
damage to its properties, equipment, infrastructure, personal injury or death, environmental damage, delays, monetary losses and
possible legal liability. Investors could lose all or part of their investment if any such catastrophic event occurs. USG does
not carry any property or casualty insurance at this time and although the Company anticipates purchasing a comprehensive insurance
policy on behalf of USG at or prior to the closing of the Merger, there can be no assurance that USG will be insured. Even if USG
does obtain insurance, it may not cover all of the risks associated with its operations. Insurance against risks such as environmental
pollution or other hazards as a result of exploration and operations are often not available to it or to other companies in its
business on acceptable terms. Should any events against which USG is not insured actually occur, USG may become subject to substantial
losses, costs and liabilities which will adversely affect its financial condition.
Although
the Merger Agreement makes declaration of the Special Dividend as a closing condition, Company shareholders may receive no value
from the Special Dividend.
Although
it is a closing condition that the Company’s Board of Directors declare the Special Dividend, there is no guarantee the Board
of the Company will elect, after the Merger is consummated, to divest the Company of its pre-Merger businesses, and even if the
Board decides it is in the best interest of shareholders to divest the business, there may be no suitable buyer of the business.
Therefore, Company shareholders may receive no value from the Special Dividend.
FORWARD-LOOKING STATEMENTS
This
proxy statement/prospectus the documents incorporated by reference into this proxy statement/prospectus contain forward-looking
statements. These forward-looking statements are based on current expectations and beliefs and involve numerous risks and uncertainties
that could cause actual results to differ materially from expectations. These forward-looking statements should not be relied upon
as predictions of future events as the Company cannot assure you that the events or circumstances reflected in these statements
will be achieved or will occur. You can identify forward-looking statements by the use of forward-looking terminology including
“believes,” “expects,” “may,” “will,” “should,” “seeks,”
“intends,” “plans,” “pro forma,” “estimates,” or “anticipates” or the
negative of these words and phrases or other variations of these words and phrases or comparable terminology. All statements other
than statements of historical fact are statements that could be deemed forward-looking statements. For example, forward-looking
statements include any statements of the plans, strategies and objectives of management for future operations, including the execution
of integration and restructuring plans and the anticipated timing of filings; any statements concerning proposed new products,
services or developments; any statements regarding future economic conditions or performance; statements of belief and any statement
of assumptions underlying any of the foregoing. Forward looking statements may also include any statements of the plans, strategies
and objectives of management with respect to the approval and closing of the Merger, the Company’s ability to solicit a sufficient
number of proxies to approve the Merger and other matters related to the consummation of the Merger.
For
a discussion of the factors that may cause the Company, USG or the combined organization’s actual results, performance or
achievements to differ materially from any future results, performance or achievements expressed or implied in such forward-looking
statements, or for a discussion the effect of the Merger on the business of the Company, USG and the combined organization, see
“Risk Factors” beginning on page 38.
Additional
factors that could cause actual results to differ materially from those expressed in the forward-looking statements are discussed
in reports filed with the SEC by the Company. See “Where You Can Find More Information”.
If
any of these risks or uncertainties materializes or any of these assumptions proves incorrect, the results of the Company, USG
or the combined organization could differ materially from the forward-looking statements. All forward-looking statements in this
proxy statement/prospectus are current only as of the date on which the statements were made. The Company and USG do not undertake
any obligation to publicly update any forward-looking statement to reflect events or circumstances after the date on which any
statement is made or to reflect the occurrence of unanticipated events.
THE MERGER
This section and
the section entitled “The Merger Agreement” in this proxy statement/prospectus describe the material aspects of the
Merger, including the Merger Agreement. While the Company believes that this description covers the material terms of the Merger
and the Merger Agreement, it may not contain all of the information that is important to you. You should read carefully this entire
proxy statement/prospectus for a more complete understanding of the Merger and the Merger Agreement, including the Merger Agreement
attached as Annex A, the opinion of ROTH Capital Partners, LLC attached as Annex B, and the other documents to which you are referred
herein. See the section entitled “Where You Can Find More Information” in this proxy statement/prospectus.
Background of the Merger
Historical Background for Dataram
Dataram’s
Board of Directors and executive management regularly review Dataram’s operating and strategic plans, both near-term and
long-term, as well as potential partnerships in an effort to enhance shareholder value. These reviews and discussions focus, among
other things, on the opportunities and risks associated with Dataram’s business and financial condition and strategic relationships
and other strategic options.
On May 3, 2016, Mr. Moylan,
the Chief Executive Officer of the Company, participated in a conference call with Mr. Kesner of Sichenzia Ross Ference Kesner,
LLP (“SRFK”), the Company’s legal counsel, and Mr. Karr, a member of the Company’s Board of Directors and
the President and Chief Executive Officer of USG regarding a potential acquisition opportunity. USG shared USG specific information
with the Company.
On May 5, 2016, USG and
Dataram discussed a potential combination of the respective businesses and developed a preliminary term sheet with proposed indicative
share exchange consideration.
On May 6, 2016, Mr.
Moylan participated in a conference call with Mr. Kesner and Mr. Karr to discuss the potential acquisition of USG.
On May 7, 2016, the Company
and USG executed a Non-Disclosure Agreement with respect to the proposed acquisition.
On May 10, 2016, the Board
of Directors of the Company held a meeting to discuss the Company’s current financial status, upcoming conferences, financing
through a private offering and the USG opportunity. In addition, at such meeting the directors of the Board authorized the Special
Committee comprised of Mr. Moylan and directors Mr. Markulec and Mr. Davis to review and manage the process for the USG acquisition.
On May 11, 2016, Mr. Moylan
discussed a fairness opinion engagement with Mr. Dalfonsi, the Managing Director of ROTH submitted a proposal to the Company for
review. In addition, on May 11, 2016, the Special Committee received access to USG’s data room to commence due diligence.
The Company commenced its due diligence on or about May 11, 2016. Moreover, on May 11, 2016, the members of the Special Committee
were introduced to Mr. Rector, Chief Operating Officer of USG. The Special Committee also discussed the importance of engaging
independent counsel to act as special counsel to the Special Committee given that SRFK, the Company’s outside counsel, had
also represented USG until the time the discussions with the Company commenced, at which point SRFK resigned its representation
of USG. The Special Committee believed should have its own independent counsel.
On May 12, 2016, Mr. Moylan
was introduced to Robert Schwartz, a partner at Windels Marx Lane & Mittendorf, LLP (“Windels”). Mr. Moylan discussed
the opportunity for Windels to act as special counsel to the Special Committee. Windels had no connections to either USG or any
of the investors in USG.
On May 13, 2016, the Special
Committee held a meeting to discuss the potential acquisition.
On May 16, 2016, Mr. Moylan
and Mr. Davis discussed the potential acquisition with Mr. Schwartz. As part of the conversation, Mr. Moylan and Mr. Davis reiterated
the importance of the special counsel being independent and representing the Special Committee.
On May 17, 2016, Mr. Davis
received a proposal from Windels with respect to the firm acting as special counsel to the Special Committee. In addition, on May
17, 2016, the Special Committee held a meeting to discuss the potential acquisition. Mr. Moylan provided Mr. Kesner a revised term
sheet with respect to the proposed acquisition.
On May 24, 2016, the Special
Committee participated in a conference call with Mr. Dalfonsi with respect to the potential acquisition. In addition, on May 24,
2016, the Company formally engaged ROTH to provide a fairness opinion with respect to the proposed acquisition.
On May 25, May 26, May
27, and May 31, 2016, the Special Committee held meetings either in person or by conference call to discuss the potential acquisition.
Representatives of ROTH participated in the meetings on May 27 and May 31. In addition, commencing in late May, counsel for the
Company began exchanging drafts of a definitive merger agreement with counsel for USG.
On June 7, 2016, the Special
Committee held a meeting to discuss the potential acquisition.
On June 8, 2016, the Special
Committee met with Mr. Dalfonsi with respect to the potential acquisition.
On June 10, 2016, the Special
Committee along with Mr. Schwartz, Mr. Kesner and Ms. Guarneri-Ferrara of SRFK held a meeting to discuss the potential acquisition
and the terms of the draft merger agreement. In addition, on June 10, 2016, the Special Committee along with Mr. Schwartz attended
a telephonic conference to discuss the status of ROTH’s fairness opinion, the revised transaction documents, the valuation
of the Copper King project and geological report on the Keystone property and ROTH’s valuation of the Keystone property.
Moreover on June 10, 2016 the Board of Directors held a meeting at which the directors discussed the proposed acquisition of USG
and certain equity awards to employees and officers of the Company. Mr. Karr recused himself from meetings of the Board of Directors
held to discuss the proposed acquisition.
On June 12, 2016, the Special
Committee held a meeting with Mr. Schwartz, Mr. Kesner, Mr. Dalfonsi and Mr. Masud to discuss ROTH’s financial analysis of
the proposed transaction, ROTH’s assessment criteria when opining on the fairness of the transaction, the pricing and fairness
of the USG private offering to the Company’s shareholders and Laidlaw & Company (UK) Ltd. involvement with the private
offering/pricing.
On June 13, 2016, the
Special
Committee held a meeting with Mr. Schwartz, Mr. Dalfonsi and Mr. Masud to discuss ROTH’s valuation and analysis of the transaction
including the implied value of USG, three valuation methods (comparable companies analysis, net present value analysis and analysis
based on precedential transactions), the revised transaction documents which incorporated the approval of the pricing of USG’s
private offering and the Company’s Current Report on Form 8-K and press release. At this meeting, Mr. Dalfonsi orally rendered
ROTH’s opinion that the terms of the Merger were fair to the Company’s shareholders, from a financial point of view.
He also delivered ROTH’s written fairness opinion shortly after conclusion of the meeting. Subsequent to these conversations,
the Special Committee approved the Merger and the Merger Agreement. The Company filed a Current Report on Form 8-K together with
the fully executed Merger Agreement with the SEC on June 13, 2016.
On June 14, 2016, the Company
issued a press release regarding the potential acquisition.
On July 29, 2016, the Company
entered into the Amended and Restated Merger Agreement which reflected a reverse split of the Company’s issued and outstanding
common shares and equivalents on a 1 for 3 basis which went effective on July 11, 2016. In addition, the Merger Agreement provided
for an adjustment of the Merger Consideration and Management Consideration (as such terms are defined in the Amended and Restated
Merger Agreement) presented on a post reverse split and “as converted” basis (with respect to issuable shares of Series
C Convertible Preferred Stock).
On September 14, 2016,
the Company entered into a Second Amended and Restated Merger Agreement which reflected changes in the number of shares to be issued
to USG shareholders based upon the success of USG’s private placement, which raised more capital than originally expected,
and revised certain other provisions of the Merger Agreement dealing with the escrow of shares by Copper King, the requirement
that USG obtain a new preliminary economic assessment prior to the Closing, and an agreement by the Company to register the Merger
Consideration under the Securities Act of 1933, as amended.
On November 28, 2016, the
Special Committee held a meeting to consider a Third Amended and Restated Merger Agreement.
The Third Amended and Restated Merger Agreement, among other things, recognized the increased number of USG securities outstanding
due to, among other things, the completion of USG’s private placement, which raised more capital than initially expected.
Based on the increase number of shares, the Special Committee requested that ROTH update and reaffirm its original opinion that
the Merger was fair to the shareholders of the Company from a financial point of view. Mr. Schwartz of Windels Marx, independent
counsel to the Special Committee, and Mr. Dalfonsi of ROTH participated by conference call in the Committee meeting. Mr. Dalfonsi
reviewed ROTH’s valuation and analysis of the transaction including the implied value of USG, three valuation methods (comparable
companies analysis, net present value analysis and analysis based on precedential transactions), and the revised transaction documents
which incorporated the approval of the pricing of USG’s private offering. At this meeting, Mr. Dalfonsi orally rendered ROTH’s
updated opinion that the terms of the Merger were fair to the Company’s shareholders, from a financial point of view. He
also delivered ROTH’s written updated fairness opinion shortly after conclusion of the meeting. Subsequent to these conversations,
the Special Committee approved the Third Amended and Restated Merger Agreement.
Dataram
Reasons for the Merger
The
Company’s Board of Directors and
the Special Committee
considered the following
factors in reaching their respective conclusions to approve the Merger and to recommend that the Company’s shareholders approve
the Merger and the issuance of the Merger Consideration, all of which the Company’s Board of Directors and
the Special
Committee
viewed as supporting its decision to approve the business combination with USG:
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The Company’s
Board of Directors believes that based upon the Company’s current financial situation, the market for its products and its
international growth that gold exploration represents a market opportunity that would diversify the Company’s business model
thereby mitigating risk associated with focusing on one industry and increase the overall value of the Company;
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The
Company’s
Board of Directors
concluded that the Merger would provide the existing Company shareholders a significant opportunity to
participate in the potential growth of the combined organization following the Merger, while the declaration of the Special Dividend
could result in additional value being paid to the Company’s pre-merger shareholders;
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The Company’s
Board of Directors also considered that the combined organization will be led by an experienced senior management team and a board
of directors with representation from each of the current boards of directors of Dataram and USG;
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The market price
for the Company’s Common Stock and its impact on the Company’s ability to raise capital as a stand-alone entity;
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The Company’s
history of losses over the prior several years and its impact on the Company’s ability to raise capital as a stand-alone
entity; and
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The Company’s
Special Committee considered the financial analyses of ROTH, including
its opinion to the Special Committee as to the fairness to Dataram dated November 28, 2016, from a financial point of view and
as of the date of the opinion, of the exchange ratio, as more fully described below under the caption “Fairness Opinion of
ROTH Capital Partners, LLC”.
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The
Company’s
Special
Committee
also reviewed the terms of the Merger including:
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The limited number and nature of the conditions to the USG
obligation to consummate the Merger and the limited risk of non-satisfaction of such conditions as well as the likelihood that
the Merger will be consummated on a timely basis;
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The rights of Dataram, and limitations on USG under the Merger Agreement to consider certain acquisition
proposals under certain circumstances should USG receive an alternative proposal; and
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The belief that the terms of the Merger Agreement, including the parties’ representations,
warranties and covenants, and the conditions to their respective obligations, are reasonable under the circumstances.
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In
the course of its deliberations, the Company’s
Special Committee
also considered a variety of risks and other countervailing factors related to the consummation
of the Merger including:
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The expenses to be incurred in connection with the Merger;
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The possible volatility, at least in the short term, of the
trading price of the Company’s Common Stock resulting from the Merger announcement;
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The risk that the Merger might not be consummated in a timely
manner or at all and the potential adverse effect of the public announcement of the Merger or on the delay or failure to complete
the Merger on the reputation of the Company;
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The risk to the business of the Company, operations and financial
results in the event that the Merger is not consummated;
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·
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The strategic direction of the combined entity following
the completion of the Merger;
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·
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The potentially strengthened balance sheet of the combined
organization resulting from (i) the requirement that USG have raised a minimum of $3,000,000 in net proceeds and up to $12,000,000
in gross proceeds from its financing prior to the closing of the Merger, (ii) that there be no liabilities on the books of USG,
and (iii) USG does not have any known and reported legal issues.
|
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·
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The Merger Consideration which is in the form of equity and
not cash; and
|
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·
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Various other risks associated with the combined organization
and the Merger, including those described in the section entitled “Risk Factors” in this proxy statement/prospectus.
|
The
foregoing information and factors considered by the Company’s Board of Directors and the
Special Committee
are
not intended to be exhaustive but are believed to include all of the material factors considered by the Company’s Board of
Directors and the
Special Committee
. In view of the wide variety of factors considered
in connection with its evaluation of the Merger and the complexity of these matters, the Company’s Board of Directors and
the
Special
did not find it useful, and did not attempt, to quantify, rank or otherwise
assign relative weights to these factors. In considering the factors described above, individual members of the Company’s
Board of Directors and the
Special Committee
may have given different weight to different
factors. The Company’s Board of Directors and
Special Committee
conducted an
overall analysis of the factors described above, including thorough discussions with, and questioning of, the Company’s management
team and the legal and financial advisors of the Company, and considered the factors overall to be favorable to, and to support,
its determination.
USG Reasons for the Merger
In
the course of reaching its decision to approve the Merger, the USG board of directors consulted with its senior management, financial
advisor and legal counsel, reviewed a significant amount of information and considered a number of factors, including, among others,
the:
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·
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Potential to provide its current shareholders with greater
liquidity by owning stock in a public company;
|
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·
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Terms and conditions of the Merger Agreement, including,
without limitation, the following:
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|
o
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Determination that the expected relative percentage ownership
of Dataram security holders and USG security holders in the combined organization was appropriate based, in the judgment of USG’s
board of directors, on the board of directors’ assessment of the approximate valuations of Dataram and USG; and
|
|
o
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Limited number and nature of the conditions of the obligation
of USG to consummate the Merger.
|
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o
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Fact that the Merger Consideration issued to USG shareholders will be registered on a Form S-4
registration statement by Dataram and will become freely tradable for USG’s shareholders who are not affiliates of USG; and
|
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o
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Likelihood that the Merger will be consummated on a timely
basis.
|
USG’s
board of directors also considered a number of uncertainties and risks in its deliberations concerning the Merger contemplated
by the Merger Agreement, including the following:
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·
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The possibility that the Merger might not be completed and
the potential adverse effect of the public announcement of the Merger on the reputation of USG and the ability of USG to obtain
financing in the future in the event the Merger is not completed;
|
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·
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The risk that the Merger might not be consummated in a timely
manner, or at all;
|
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·
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The expenses to be incurred in connection with the Merger
and related administrative challenges associated with combining the companies;
|
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·
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The additional public company expenses and obligations that
USG’s business will be subject to following the Merger that it has not previously been subject to; and
|
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·
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Various other risks associated with the combined organization
and the merger, including the risks described in the section entitled “Risk Factors” in this proxy statement/prospectus.
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Fairness
Opinion of Roth Capital Partners, LLC
The
Company obtained a fairness opinion from Roth Capital Partners, LLC, a third party firm. Roth Capital Partners, LLC, as part of
its investment bank business, is engaged in the business of providing fairness opinions, mergers and acquisitions, negotiated underwritings,
secondary distributions of listed securities, private placements and valuations for estate, corporate and other purposes. Roth
Capital Partners, LLC is a full service securities firm engaged in securities trading and brokerage activities, as well as providing
investment banking and other financial services.
Roth
Capital Partners, LLC was retained to provide a recommendation of the fair value of the Merger Consideration for financial reporting
purposes in connection with the preparation of USG’s audited financial statements and the preparation of pro-forma financial
information included herein, in accordance with FASB Accounting Standards Codification (“ASC”) No. 805,
Business
Combinations
(“ASC 805”).
Prior
to engaging them, Roth Capital Partners, LLC provided an overview and general presentation of its services to the Company’s
Board of Directors and its independent auditors. Roth Capital Partners, LLC has not had any material relationship with the Company
in the last two years.
Roth
Capital Partners, LLC was retained by the Company as its financial advisor under an engagement letter dated May 24, 2016.
On
November 28, 2016, at a meeting of the
Special Committee, Roth Capital Partners, LLC rendered its oral opinion to the Special
Committee and subsequently confirmed by delivery of a written opinion dated November 26, 2016
that,
as of such date and based upon and subject to the assumptions, qualifications and limitations set forth in its opinion, the Merger
Consideration was fair, from a financial point of view, to the stockholders of the Company.
The
full text of the written opinion of Roth Capital Partners, LLC, dated November 26, 2016, which sets forth the assumptions made,
procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as
Annex
B
and is incorporated herein by reference. Holders of the Company’s voting capital are urged to read the opinion
in its entirety. Roth Capital Partners, LLC provided its opinion for the sole benefit and use of the Company’s Special Committee
in its consideration of the transaction. The Roth Capital Partners, LLC opinion does not constitute an opinion as to the merits
of the Merger and is not a recommendation to any stockholder as to how such stockholder should vote with respect to the Merger
and the issuance of the Merger Consideration, or any other matter. The
exchange ratio was
determined through negotiations between the Company and USG and not pursuant to the recommendations of Roth Capital Partners, LLC.
The summary of the opinion below is qualified in its entirety by reference to the full text of the opinion.
In
connection with its opinion, Roth Capital Partners, LLC reviewed and considered such financial and other information as it deemed
relevant, including, among other things:
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a draft of the Merger Agreement;
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·
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certain publicly available and other business and financial
information provided by the Company;
|
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·
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certain internal financial statements and other financial
and operating data with respect to USG;
|
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financial forecasts with respect to USG; and
|
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·
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financial performance of the Company compared to USG.
|
In
addition, Roth Capital Partners, LLC engaged in discussions with management of the Company with respect to past and current operations
and financial condition and prospects of the Company and USG and the strategic rationale for, and the potential benefits of, the
Merger.
In
conducting its review and analysis and in arriving at its opinion, Roth Capital Partners, LLC has, with the Company’s consent,
assumed and relied, without independent investigation, upon the accuracy and completeness of all information provided to it, or
publicly available. Roth Capital Partners, LLC did not undertake any responsibility for independently verifying, and did not independently
verify, the accuracy, completeness or reasonableness of any such information. With respect to financial forecasts for USG that
were provided to Roth Capital Partners, LLC and that Roth Capital Partners, LLC reviewed, Roth Capital Partners, LLC was advised,
and it has assumed, with the Company’s consent, that such forecasts and other information were reasonably prepared in good
faith on the basis of reasonable assumptions and reflected the best currently available estimates and judgments of the managements
of USG as to the future financial condition and performance of USG. Roth Capital Partners, LLC expresses no opinion with respect
to such forecasts and other information or the estimates or assumptions upon which they are based.
Roth
Capital Partners, LLC did not make or obtain any independent evaluations, valuations or appraisals of the assets or liabilities
of the Company or USG, nor was it furnished with any such valuation or appraisal. Roth Capital Partners, LLC’s opinion does
not express any opinion as to (i) any legal, tax or accounting matters or (ii) amount or nature of any compensation to any officers,
directors or employees of, or any class of such persons, relative to the consideration to be received by the stockholders of the
Company in the Merger. Roth Capital Partners, LLC’s opinion relates solely to the fairness of the Merger Consideration
to the stockholders of the Company, and its opinion does not address (i) the relative merits of the Merger as compared to any alternative
business strategies that might exist for the Company, (ii) the Company’s underlying business decision to proceed with the
Merger or (iii) the efforts of any other transaction in which the Company may engage Roth Capital Partners
, LLC is not expressing
any opinion as to the impact of the Merger on the solvency or viability of the Company or USG or the ability of the Company or
USG to
pay its obligations when they come due.
Roth Capital Partners, LLC
is
not expressing any opinion as to what the value of the Company’s Common Stock actually will be when issued pursuant to the
Merger or the prices at which shares of the Company’s Common Stock may trade at any time.
Roth
Capital Partners, LLC’s opinion was necessarily based upon economic, monetary, market, financial and other conditions as
they exist and can be evaluated, and the information made available to Roth Capital Partners, LLC as of the date the opinion was
delivered. It should be understood that although subsequent developments may affect Roth Capital Partners, LLC’s opinion,
Roth Capital Partners, LLC does not have any obligation to update, revise or reaffirm its opinion based on such developments and
Roth Capital Partners, LLC expressly disclaims any responsibility to do so.
Roth
Capital Partners, LLC’s opinion was intended for the benefit and use of the Company’s
Special Committee
in
its consideration of the proposed transaction. Roth Capital Partners, LLC’s opinion does not constitute a recommendation
of the Merger or the issuance of the Merger Consideration to the
Special Committee
nor
does it constitute a recommendation to any stockholder of the Company as to how such stockholder should vote with respect to the
Merger, the issuance of the Merger Consideration or otherwise.
The
following is a summary of the principal financial analyses performed by Roth Capital Partners, LLC to arrive at its opinion. Some
of the summaries of financial analyses include information presented in tabular format. In order to fully understand the financial
analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description
of the financial analyses. Considering the data set forth in the tables without considering the full narrative description of the
financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete
view of the financial analyses, Roth Capital Partners LLC performed certain procedures, including each of the financial analyses
described below, and reviewed with the management of the Company the assumptions on which such analyses were based and other factors,
including the historical and projected financial results of USG.
Roth
Capital Partners, LLC developed and delivered its written opinion to the Company’s Board of Directors (and the special committee)
as to the fairness to the Company and its stockholders, from a financial point of view, of the exchange ratio/merger consideration
to be paid by the Company as specified in the transactions documents governing the merger. The opinion was based upon such financial
review of the Transaction, the Company, the acquisition target and any other parties to the Transaction and their respective businesses
and operations as Roth Capital Partners, LLC deemed appropriate and feasible, limited, in any event, to an analysis of (a) publicly
available information with respect to the Transaction and such other matters as Roth Capital Partners, LLC deemed appropriate (b)
financial information and other documentation related to the operations of the acquisition target and (c) such other information
the Company provided Roth Capital Partners, LLC upon reasonable request. The Opinion was in such form as Roth Capital Partners,
LLC customarily provides in transactions of this type and Roth Capital Partners, LLC qualified the Opinion in such manner as Roth
Capital Partners, LLC believes appropriate and which is generally customary for such opinion.
In
developing the opinion, Roth Capital Partners, LLC:
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·
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Relied upon the
information furnished to it by the Company and information which is publicly available,
|
|
·
|
Assumed the accuracy
and completeness of such information; and
|
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·
|
Did not independently
verify any such information, nor conduct any appraisal of assets.
|
Comparable
Company Analysis
As
part of the analysis, Roth Capital Partners, LLC reviewed comparable companies. Roth Capital Partners, LLC compared Dataram’s
offer multiple on an enterprise value to resource against the multiples of comparable companies. Comparable companies have the
following characteristics:
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·
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Metals and Mining/Gold/Precious
Metals and for the most part have US based listed properties in a similar stage of development;
|
|
·
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U.S.-listed gold
& copper mining companies;
|
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·
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Canada-listed
gold & copper mining companies ; and
|
The
analysis determined the multiples of enterprise value for the consideration given was 30.3 times enterprise value to resource.
The comparable group had enterprise value to resource multiples range from a minimum of 1.0 time to 59.8 times. The twenty-fifth
percentile multiple of enterprise value to resource was 4.1 times and the seventy-fifth percentile was 18.7 times. The median enterprise
value to resource multiple was 12.7 times.
Precedent
Transaction Analysis
As
part of the analysis, Roth Capital Partners, LLC reviewed the transaction against precedent transactions and:
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·
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Compared Dataram’s
offer multiple against multiples paid in comparable transactions.
|
|
·
|
Reviewed comparable
transactions from January 1, 2014 to Present with transaction values less than $1B (one billion)
|
|
o
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Included transactions that occurred in the metals and mining,
gold or precious metals and minerals industries; and
|
|
o
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Only North American transactions that took a majority interest
were included in the analysis.
|
The
analysis determined the multiples of enterprise value for the consideration given was 30.3 times enterprise value to resource.
The comparable group had enterprise value to resource multiples range from a minimum of 3.5 time to 77.1 times. The twenty-fifth
percentile multiple of enterprise value to resource was 6.0 times and the seventy-fifth percentile was 16.8 times. The median enterprise
value to resource multiple was 11.7 times.
Net
Present Value Projections based on management’s projection
Roth
Capital Partners, LLC estimated the net present value (“NPV) of USG based on USG’s provided management’s cash
flow projections:
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·
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22-year projected
cash flow model;
|
|
·
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Management financial
projections (2016-2037); and
|
|
·
|
Considered weighted average cost of capital
(“WACC”) range of 6.3% to 10.3%. This was based on deriving a beta value from comparable companies that have traded
at least 12 months
. Roth Capital Partners, LLC used Capital IQ
which calculates beta on a monthly basis. Roth Capital Partners, LLC uses mid-year conventions to discount cash flows as Roth Capital
Partners, LLC assume that cash flows are continuous throughout the year. Roth Capital Partners, LLC also assumed, B(u) = B(l) /
(1+(1-Tax Rate) x Debt-to-Equity), debt as of 11/01/16 and further assumed this amount of leverage persists as the Company's target
leverage ratio. Effective tax rate provided by mgmt. Source of the 10-Year Treasury yield at 11/25/16 and source was from the 2015
Valuation Handbook. Roth Capital Partners, LLC used CAPM Cost Equity Capital Calculation: Risk Free Rate + (Equity Beta x Equity
Risk Premium). The cost of debt provided by management and the Weighted Average Cost of Capital = (Debt-to-Capital x Cost of Debt
x (1-Tax Rate)) + (Equity-to-Capital x Cost of Equity Capital).
|
Based
on the analysis, the Net Present Value of the cash flow, given the consideration paid by the Company ranged from ($5.0) million
to $41.2 million with a midpoint of $15.3 million
Other
considerations
Roth
Capital Partners, LLC also considered several additional elements as part of its efforts:
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·
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Small market
capitalization and trading volume in Dataram stock;
|
|
·
|
Analyzed EV/MI&I
Resource data that was publicly available for both publicly traded comparable companies and precedent transactions;
|
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·
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Considered potential
up-stream integration possibilities for Dataram;
|
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·
|
Considered the
special dividend for current Dataram shareholders should core business be sold within 18 months of the transaction; and
|
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·
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Recognized that
absent the current transaction, Dataram would need to raise additional capital.
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General
The
foregoing summary of certain material financial analyses does not purport to be a complete description of the analyses or data
presented by Roth Capital Partners, LLC. The preparation of a fairness opinion is a complex process involving various determinations
and subjective judgments as to the most appropriate and relevant methods of financial analysis and the application of those methods
to the particular circumstances. Therefore such an opinion and the analyses used in arriving at such an opinion are not readily
susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth above, without
considering the analyses as a whole, could create an incomplete view of the processes underlying Roth Capital Partners, LLC’s
opinion. In arriving at its fairness determination, Roth Capital Partners, LLC considered the results of all of its analyses and
did not attribute any particular weight to any factor or analysis considered by it. Rather, Roth Capital Partners, LLC made its
determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its
analyses.
Roth
Capital Partners, LLC prepared the foregoing analyses for purposes of providing its opinion to the
Special
Committee
as to the fairness
from a financial point of view, to the stockholders of
the Company.
These analyses do not purport to be appraisals nor do they necessarily reflect the prices at which businesses
or securities actually may be sold. Analyses based upon forecasts of future results are not necessarily indicative of actual future
results, which may be significantly more or less favorable than suggested by these analyses. Because these analyses are inherently
subject to uncertainty, being based upon numerous factors or events beyond the control of the parties or their respective advisors,
neither the Company nor Roth Capital Partners, LLC nor any other person assumes responsibility if future results are materially
different from those forecast.
The exchange ratio was
determined through arms’-length negotiations between the Company and its representatives, on the one hand, and USG and its
representatives, on the other hand. Although Edward Karr is a member of the Board of Directors of the Company and the President,
Chief Executive Officer and a member of the Board of Directors of USG, Mr. Karr recused himself from meetings of the Board of Directors
of the Company held to discuss the proposed acquisition and terms.
The
decision by the Company’s
Special Committee
to approve the
transaction and enter into the Merger Agreement was solely that of the Company’s
Special
Committee
. Roth Capital Partners, LLC did not recommend or determine the amount of consideration to be paid in the Merger.
As described above, Roth Capital Partners, LLC’s opinion to the
Special
Committee
was one of many factors taken into consideration by the
Special
Committee in making its determination to approve the Merger Agreement and the issuance of the Merger Consideration.
Interests
of Certain of the Company’s Directors and Executive Officers in the Merger
In
considering the recommendation of the Company with respect to Merger and the issuance of the Merger Consideration to be acted upon
by the Company’s shareholders at the Special Meeting, shareholders should be aware that certain members of the Company’s
management have interests that may be different from those of the shareholders. The members of the Special Committee were aware
of these interests at the time they approved the Merger and the Merger Agreement.
Mr.
Edward Karr is a member of the Board of Directors of the Company and the President, Chief Executive Officer, and a member of the
Board of Directors of USG. Accordingly, Mr. Karr has a substantial interest in approval of the Merger and issuance of the Merger
Consideration. Mr. Karr owns 833,333 shares of USG common stock which will be exchanged for 833,333 shares of the Company’s
Common Stock.
Anthony Lougee and David
Moylan have employment and severance agreements with Dataram which include Change in Control provisions. These agreements provide
Mr. Lougee and Mr. Moylan with additional compensation upon the occurrence of certain conditions following a change in control.
The Merger will constitute a change in control under the respective agreements. See – “EXECUTIVE COMPENSATION FOR THE
COMBINED COMPANY – Employment Agreements and Potential Change in Control Payments” for the amounts payable to Messrs.
Lougee and Moylan under their agreements.
Form of the Merger
The
Merger Agreement provides that at the effective time, DAS will be merged with and into USG. Upon the consummation of the Merger,
USG will continue as the surviving corporation and will be a wholly-owned subsidiary of the Company.
Merger Consideration
At the effective time of
the merger, the outstanding shares of USG common stock, USG Series A Preferred Stock, USG Series B Preferred Stock and USG Series
C Preferred Stock will be converted into the right to receive, , an aggregate of (i) up to 45,880,820 shares of common stock, par
value $0.001 per share (the “Common Stock”) of the Company (including shares of Common Stock issuable upon conversion
of our newly designated Series C Convertible Preferred Stock, par value $0.001 per share (the “Series C Preferred Stock”))
and, (ii)and holders of outstanding USG options will be entitled to receive options to purchase up to 925,833 shares of the Company’s
Common Stock at an exercise price equal to $0.90 per share and (iii)holders of outstanding USG warrants will be entitled to receive
cashless warrants to purchase up to 1,809,436 shares of the Company’s Common Stock to be issued to a placement agent at an
exercise price of $0.66 per share, as consideration for the acquisition of USG in accordance with Stock Market Rules.
Immediately after the Merger,
based on the exchange ratio, it is expected that USG’s shareholders will own approximately 90.8% of the fully-diluted Common
Stock of the Company with the Company’s shareholders and holding approximately 9.2% of the fully-diluted common stock of
the Company.
Additionally,
Dataram shareholders as of a record date which is no less than five (5) business days prior to the Closing Date, will be eligible
to receive a special dividend, a right entitling each shareholder to a proportionate ownership interest, record or beneficial,
equal to their ownership interest in the Company, of the Company assets or the proceeds therefrom, as, when and if the Board of
Directors of the Company elects to divest such Company assets within eighteen (18) months of the closing date.
The
Merger Agreement does not include a price-based termination right, and there will be no adjustment to the total number of shares
of the Company’s Common Stock that USG shareholders will be entitled to receive for changes in the market price of the Company’s
Common Stock. Accordingly, the market value of the shares of the Company’s Common Stock issued pursuant to the Merger will
depend on the market value of the shares of the Company’s Common Stock at the time the Merger is consummated, and could vary
significantly from the market value on the date of this proxy statement/prospectus.
Company’s
Series C Preferred Stock
On or prior to the effective
time of the merger, the Company will file a Certificate of Designation of 0% Series C Convertible Preferred Stock (“Series
C COD”) with the Secretary of State of the State of Nevada with respect to the designation of shares of Series C Preferred
Stock, par value $0.001 per share (the “Par Value”). Each share of Series C Preferred Stock will have a stated value
of $* per share (the “Stated Value”) and will be convertible into such number of shares of Common Stock equal to the
Base Amount divided by the Conversion Price. ”Base Amount” means the sum of (1) the Stated Value of the Series C Preferred
Stock, plus (2) the unpaid dividend amount thereon as of such date of determination. Upon the liquidation, dissolution or winding
up of the business of the Company, each holder of Series C Preferred Stock shall be entitled to receive, for each share of Series
C Preferred Stock held an amount in cash equal to, and not more than, the par value before payment is made to any other class or
series of capital stock whose terms expressly provide that the holders of Series C Preferred Stock should receive preferential
payment and the Company’s Common Stock; provided, however, that Series B Convertible Preferred Stock shall rank senior to
Series C Preferred Stock. Holders of Series C Preferred Stock shall not possess any voting rights and are entitled to receive dividends
when and as declared by the Board of Directors. If at any time the Company grants, issues or sells any options, convertible securities
or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock
then each Holder will be entitled to acquire, upon the terms applicable to such purchase rights, the aggregate purchase rights
which such holder could have acquired if such holder had held the number of shares of Common Stock acquirable upon complete conversion
of all the (without taking into account any limitations or restrictions on the convertibility of the Series C Preferred Stock)
held by such holder immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights,
or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue
or sale of such purchase rights; provided, however, that if the holder’s right to participate in any such Purchase Right
would result in such holder exceeding the Beneficial Ownership Limitation (defined below), then such holder shall not be entitled
to participate in such purchase right until such time as the purchase rights would not result in such holder exceeding the Beneficial
Ownership Limitation. At no time may shares of Series C Preferred Stock be converted if such conversion would cause the holder
to hold in excess of 4.99% of the issued and outstanding Common Stock of the Company. The Series C Preferred Stock is subject to
adjustment in the event of stock dividends, splits and fundamental transactions.
Promptly
after the effective time of the Merger, each holder of USG common stock,
Series A Preferred Stock, Series B Preferred Stock
and Series C Preferred Stock
immediately prior to the effective time of the Merger will receive
a letter of transmittal and instructions for surrendering and exchanging the holder’s USG capital stock for the Merger Consideration.
Upon surrender of USG capital stock certificate for exchange together with a duly signed letter of transmittal and such other documents
as the Company’s exchange agent or the Company may reasonably require, the USG stock certificate surrendered will be cancelled
and the holder of the USG stock certificate will be entitled to receive a certificate representing the Merger Consideration that
such holder has the right to receive pursuant to the provisions of the Merger Agreement.
At
the
effective time of the Merger
, all holders of certificates representing shares
of USG common stock or USG preferred stock that were outstanding immediately prior to the
Effective
Time of the Merger
will cease to have any rights as shareholders of USG. In addition, no transfer of USG common stock or
USG preferred stock after the
Effective Time of the Merger
will be registered on the
stock transfer books of USG.
If
any USG stock certificate has been lost, stolen or destroyed, the Company may, in its discretion, and as a condition to the delivery
of the Merger Consideration, require the owner of such lost, stolen or destroyed certificate to deliver an affidavit claiming such
certificate has been lost, stolen or destroyed and post a bond indemnifying the Company against any claim suffered by the Company
related to the lost, stolen or destroyed certificate or the Merger Consideration issued in exchange for such certificate as the
Company may reasonably request.
From
and after the
Effective Time of the Merger
, until it is surrendered, each certificate
that previously evidenced USG common stock or USG preferred stock will be deemed to represent only the right to the Merger Consideration.
Effective Time of the Merger
The
Merger Agreement requires the parties to consummate the Merger after all of the conditions to the consummation of the Merger contained
in the Merger Agreement are satisfied or waived, including approval by the Company’s shareholders of the Merger and the Merger
Consideration and the certificate of amendment to the Company’s Articles of Incorporation to increase to the Company’s
authorized Common Stock from 54,000,000 shares to 200,000,000 shares and Preferred Stock from 5,000,000 shares to 50,000,000 shares.
The Merger will become effective upon the filing of Articles of Merger with the Secretary of State of the State of Nevada or at
such later time as is agreed by the Company and USG and specified in the Articles of Merger. Neither the Company nor USG can predict
the exact timing of the consummation of the Merger. Immediately after the effective time of the Merger, USG will merge with and
into DAS, with USG surviving as a wholly-owned subsidiary of the Company.
Regulatory Approvals
The
Company must comply with applicable federal and state securities laws and the rules and regulations of The NASDAQ Stock Market
LLC in connection with the consummation of the Merger and the issuance of the Merger Consideration and the filing of this proxy
statement/prospectus.
Material
U.S. Federal Income Tax Consequences of the Merger
Generally
The
following discussion summarizes the material U.S. federal income tax consequences of the Merger to U.S. holders (as defined below)
of USG capital stock. This discussion is based on the Code, Treasury Regulations, administrative pronouncements and judicial decisions
currently in effect, all of which are subject to change, possibly with retroactive effect. Any such change could affect
the accuracy of this discussion.
This
discussion assumes you hold your shares of USG capital stock as capital assets within the meaning of Section 1221 of the Code. This
discussion does not address all aspects of U.S. federal income taxation that may be relevant to you in light of your particular
circumstances or to U.S. holders of USG capital stock subject to special treatment under the federal income tax laws such as:
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tax-exempt organizations;
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financial institutions;
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dealers in securities or foreign currency;
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persons that hold USG capital stock as part of a straddle,
hedge, constructive sale or other integrated security transaction;
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persons that have a functional currency other than the U.S.
dollar;
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investors in pass-through entities; or
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persons who acquired their USG capital stock through the
exercise of options or otherwise as compensation or through a tax-qualified retirement plan.
|
Further,
this discussion does not consider the potential effects of any state, local or foreign tax laws or U.S. federal tax laws other
than federal income tax laws.
This
discussion is not intended to be tax advice to any particular holder of USG capital stock. Tax matters regarding the
Merger are complicated, and the tax consequences of the Merger to you will depend on your particular situation. You
should consult your own tax advisor regarding the specific tax consequences to you of the Merger, including the applicability and
effect of federal, state, local and foreign income and other tax laws.
For purposes
of this discussion, you are a “U.S. holder” if you beneficially own USG capital stock and you are:
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a
citizen or resident of the United States for federal income tax purposes;
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a c
orporation, or other entity taxable as a corporation for U.S. federal income
tax purposes, created or organized under the laws of the United States or any of its political subdivisions;
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a t
rust, if (i) a U.S. court is able to exercise primary
supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions
of the trust or (ii) the trust has a valid election in effect under applicable Treasury regulations to be treated as a U.S. person;
or
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an
estate that is subject to U.S. federal income tax on its income regardless
of its source.
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If
an entity classified as a partnership for U.S. federal income tax purposes holds USG capital stock, the tax treatment of a partner
generally will depend upon the status of the partner and the activities of the partnership.
Partners of partnerships
holding USG capital stock are urged to consult their own tax advisors.
Neither
Dataram nor USG have requested a ruling from the IRS with respect to any of the U.S. federal income tax consequences of the Merger
and, as a result, there can be no assurance that the IRS will not disagree with any of the conclusions described below. It
is the Company’s understanding that the Merger will, under current law, constitute a tax-free reorganization under Section
368(a) of the Code, and Dataram and USG will each be a party to the reorganization within the meaning of Section 368(b) of the
Code. This understanding is not binding on the IRS or any court.
The
discussion below summarizes the material U.S. federal income tax consequences to a U.S. holder of USG capital stock resulting from
the qualification of the Merger as reorganization within the meaning of Section 368(a) of the Code.
U.S. Federal Income
Tax Consequences of the Merger to U.S. Holders
As a
tax-free reorganization, it is the understanding of the Company that the Merger will have the following federal income tax consequences
for U.S. holders of USG capital stock:
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No gain or loss will be recognized by U.S. holders of USG capital stock as a result of
the exchange of such shares for the Merger Consideration pursuant to the Merger.
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The tax basis of the Merger Consideration received by each U.S. holder of USG capital
stock will equal the tax basis of such U.S. holder’s shares of USG capital stock exchanged in the Merger
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The holding period for the Merger Consideration received by each U.S. holder of USG capital
stock will include the holding period for the shares of USG capital stock of such U.S. holder exchanged in the Merger.
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Reporting and Retention
Requirements
If
you receive the Merger Consideration as a result of the Merger, you are required to retain certain records pertaining to the Merger
pursuant to the Treasury Regulations under the Code. If you are a “significant holder” (as defined in the
Treasury Regulations under the Code) of USG capital stock, you must file with your U.S. federal income tax return for the year
in which the Merger takes place a statement setting forth certain facts relating to the Merger.
You are urged
to consult your tax advisors concerning potential reporting requirements.
SHAREHOLDERS
AND INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR
SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE MERGER ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS
OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.
No
ruling from the IRS has been or will be requested in connection with the Merger. In addition, shareholders of the Company should
be aware that the tax opinions discussed in this section are not binding on the IRS, and the IRS could adopt a contrary position
and a contrary position could be sustained by a court.
THE
PRECEDING DISCUSSION DOES NOT PURPORT TO BE A COMPLETE ANALYSIS OR DISCUSSION OF ALL OF THE MERGER’S POTENTIAL TAX EFFECTS.
U.S. HOLDERS OF USG STOCK SHOULD CONSULT THEIR TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE MERGER, INCLUDING
TAX RETURN REPORTING REQUIREMENTS, AND THE APPLICABILITY AND EFFECT OF FEDERAL, STATE, LOCAL AND OTHER APPLICABLE TAX LAWS.
NASDAQ Stock Market Listing
The
Company’s Common Stock currently is listed on The NASDAQ Capital Market under the symbol “DRAM”. The Company
is required to obtain approval for listing of the Common Stock constituting the Merger Consideration on The NASDAQ Capital Market.
Pursuant to the Merger Agreement, the consummation of the Merger is subject to the satisfaction or waiver by each of the parties,
at or prior to the effective time of the Merger, of various conditions, including that the Company must have caused the Merger
Consideration to be approved for listing on The NASDAQ Capital Market.
Prior
to consummation of the Merger, the Company intends to file an additional listing application with The NASDAQ Capital Market with
respect to the listing of the Common Stock constituting the Merger Consideration.
Anticipated
Accounting Treatment
The Merger is being accounted
for as a “reverse merger,” and USG is deemed to be the acquirer in the reverse merger. Consequently, the assets and
liabilities and the historical operations that will be reflected in the financial statements prior to the Merger will be those
of USG, and the consolidated financial statements after completion of the Merger will include the assets and liabilities of USG,
historical operations of USG and operations of Dataram from the Closing Date of the Merger.
Appraisal Rights
Under
the Nevada Revised Statutes and our charter documents, holders of our Common Stock will not be entitled to statutory rights of
appraisal, commonly referred to as dissenters’ rights or appraisal rights (i.e., the right to seek a judicial determination
of the “fair value” of their shares and to compel the purchase of their shares for cash in that amount) with respect
any of the proposals.
Pursuant
to Section 92A.390 of the Nevada Revised Statutes, there is no right of dissent with respect to a plan of merger in favor of shareholders
of any class or series which is a covered securities under section 18(b)(1)(A) of the Securities Act. Section 18(b)(1)(A) of the
Securities Act defines a covered security to include a security that is listed on the National Market System of the NASDAQ Stock
Market.
THE MERGER AGREEMENT
The following is
a summary of the material terms of the Merger Agreement. A copy of the Merger Agreement is attached as Annex A to this proxy statement/prospectus
and is incorporated by reference into this proxy statement/prospectus. The Merger Agreement has been attached to this proxy statement/prospectus
to provide you with information regarding its terms. It is not intended to provide any other factual information about the Company,
USG or DAS. The following description does not purport to be complete and is qualified in its entirety by reference to the Merger
Agreement. You should refer to the full text of the Merger Agreement for details of the Merger and the terms and conditions of
the Merger Agreement.
The Merger Agreement
contains representations and warranties that USG and DAS, on the one hand, and USG, on the other hand, have made to one another
as of specific dates. These representations and warranties have been made for the benefit of the other parties to the Merger Agreement
and may be intended not as statements of fact but rather as a way of allocating the risk to one of the parties if those statements
prove to be incorrect. In addition, the assertions embodied in the representations and warranties are qualified by information
in confidential disclosure schedules exchanged by the parties in connection with signing the Merger Agreement. While the Company
and USG do not believe that these disclosure schedules contain information required to be publicly disclosed under the applicable
securities laws, other than information that has already been so disclosed, the disclosure schedules do contain information that
modifies, qualifies and creates exceptions to the representations and warranties set forth in the attached Merger Agreement. Accordingly,
you should not rely on the representations and warranties as current characterizations of factual information about the Company
or USG, because they were made as of specific dates, may be intended merely as a risk allocation mechanism between the Company,
DAS and USG and are modified by the disclosure schedules.
General
Pursuant
to the terms of the Merger Agreement, DAS, the Company’s wholly-owned subsidiary formed in connection with the Merger will
merge with and into USG, with USG surviving as a wholly-owned subsidiary of the Company.
Merger
Consideration
At
the effective time, by virtue of the Merger, outstanding shares of USG’s common stock and Series A Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock as well as outstanding options and warrants of USG (as applicable)will be converted
into the receive to receive the following:
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One Million Five Hundred Eighty Three Thousand and Three Hundred Thirty Three (1,583,333) shares
of the Company’s Common stock will be issued to certain officers, directors and consultants of USG conditioned upon the receipt
of a Two Year Lockup agreement from each officer, director, and consultant;
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One Hundred Fifty One Thousand Five Hundred Fifteen (151,515) shares of Common Stock shall be issued
to certain members of USG management, subject to the execution and delivery by such holders of the One Year Lockup Agreement;
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Twenty Two Million Three Hundred and Thirty Four Thousand Eight Hundred and Ninety Three (22,334,893)
shares of the Company’s Common Stock will be issued to holders of USG’s Series A Preferred Stock;
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One Million Eight Hundred Sixty Six Thousand Seven Hundred and Seventeen (1,866,717) shares of
the Company’s Common Stock will be issued to holders of USG’s Series B Preferred Stock, the receipt of which will be
conditioned upon the receipt of a One Year Lockup agreement from each holder of Series B Preferred Stock;
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Eighteen Million Ninety Four Thousand Three Hundred and Sixty Two (18,094,362) shares of the Company’s
Common Stock will be issued to holders of USG’s Series C Preferred Stock issued in connection with USG’s private placement
of $11,942,279 pursuant to which Laidlaw & Company (UK) Ltd. (“Laidlaw”) served as USG’s placement agent;
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One Million Eight Hundred and Nine Thousand Four Hundred and Thirty Six (1,809,436) Five-year cashless
warrants with an exercise price of $0.66 per share shall be issued to Laidlaw to purchase shares of Common Stock, in with additional
form and terms as shall be mutually agreed upon between the Company and Parent prior to Closing;
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One Million Eight Hundred and Fifty Thousand (1,850,000) shares of Common Stock shall be issued
to the holders of Common Shares of the Company issued in connection with the closing of the Keystone Acquisition, the receipt of
which shall be conditioned on the receipt of a Two Year Lockup Agreement from each Keystone Holder; and
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Nine Hundred Twenty Five Thousand Eight Hundred Thirty Three (925,833) Five-year options with an
exercise price of $0.90 per share, which vest 1/24 each month over the 2 years from the original date of issue, shall be issued
in connection with the closing of the Keystone Acquisition, to purchase shares of Common Stock, in with additional form and terms
as shall be mutually agreed upon between the Company and Parent prior to Closing.
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The Merger Consideration,
in the aggregate and on an “as converted” and fully diluted basis, shall not exceed Forty Eight Million Six Hundred
Sixteen Thousand Eighty Nine (48,616,089) shares of Common Stock and equivalents, to include the warrants to purchase up to One
Million Eight Hundred and Nine Thousand Four Hundred Thirty Six (1,809,436) shares of Common Stock and options to purchase up to
Nine Hundred Twenty Five Thousand Eight Hundred Thirty Three (925,833) shares of Common Stock.
Immediately after the Merger,
based on the exchange ratio, it is expected that USG’s shareholders will own approximately 90.8% of the fully-diluted Common
Stock of the Company with the Company’s shareholders and holding approximately 9.2% of the fully-diluted common stock of
the Company.
Additionally,
Dataram shareholders as of a record date which is no less than five (5) business days prior to the Closing Date, will be eligible
to receive a special dividend, a right entitling each shareholder to a proportionate ownership interest, record or beneficial,
equal to their ownership interest in the Company, of the Company assets or the proceeds therefrom, as, when and if the Board of
Directors of the Company elects to divest such Company assets within eighteen (18) months of the closing date.
The
Merger Agreement does not include a price-based termination right, and there will be no adjustment to the total number of shares
of the Company’s Common Stock that USG shareholders will be entitled to receive for changes in the market price of the Company’s
Common Stock. Accordingly, the market value of the shares of the Company’s Common Stock issued pursuant to the Merger will
depend on the market value of the shares of the Company’s Common Stock at the time the Merger is consummated, and could vary
significantly from the market value on the date of this proxy statement/prospectus.
Directors
and Officers of the Company Following the Merger
Pursuant
to the Merger Agreement, Trent D. Davis and Michael E. Markulec will resign at or prior to the consummation of the Merger.
In addition, USG appointed the following three designees to the Company’s Board of Directors, which appointment shall be
effective on the eleventh day following the date on which the Company meets its information obligations under the Exchange Act,
including the filing and mailing of a Schedule 14f-1: Timothy M. Janke, James Dale Davidson, and John N. Braca.
The
following table lists the names and positions of the individuals who, pursuant to the Merger Agreement, are expected to serve as
executive officers and directors of the Company upon completion of the Merger:
Name
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Title
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Edward M. Karr
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Chief Executive Officer, President and Director
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David A. Moylan
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President: Dataram Division and Director
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David S. Rector
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Chief Operating Officer and Corporate Secretary
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Timothy M. Janke
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Director
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James Dale Davidson
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Director
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John N. Braca
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Director
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Surviving
Corporation
Rights,
Privileges and Liabilities of Surviving Corporation
At
the effective time,
all the properties, rights, privileges, powers and franchises of DAS and USG will vest in the Surviving
Corporation, and all debts, liabilities and obligations of DAS and USG will become the debts, liabilities and obligations of the
surviving corporation.
Articles of Incorporation
and Bylaws of Surviving Corporation
The
articles of incorporation and bylaws of USG in effect at the Effective Time will become the articles of incorporation and the bylaws
of the surviving corporation.
Conditions to the
Consummation of the Merger
The
closing of the Merger is subject to customary closing conditions, including, among other things, the:
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Approval of the Company’s shareholders holding a majority of the Company’s outstanding
voting capital to consummate the Merger and to issue the Merger Consideration pursuant to the continued listing standards of The
NASDAQ Stock Market LLC;
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Approval of the Company’s shareholders holding a majority of the Company’s outstanding
voting capital to increase the number of shares of authorized Capital Stock;
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Receipt by the Company of a fairness opinion with respect to the Merger and the Merger Consideration;
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Company filing Schedule 14f-1 with respect to the change in the Company’s Board of Directors;
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Receipt by the Company of lock-up agreements from certain USG shareholders which lock-up agreements
must be in full force and effect; and
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The Board of the Company declaring the Special Dividend.
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In
addition,
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USG must close upon a financing pursuant to which USG receives at least $3 million in net proceeds
(and a maximum of $12 million in gross proceeds) from a financing;
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USG must close upon the acquisition of certain mining claims related to a gold development project
in Eureka County, Nevada (the “Keystone Project”);
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USG, in the aggregate and on an “as converted” and fully diluted basis, shall not exceed
Forty Eight Million Six Hundred Sixteen Thousand Eighty Nine (48,616,089) shares of common stock and equivalents, to include the
warrants to purchase up to One Million Eight Hundred and Nine Thousand Four Hundred Thirty Six (1,809,436) shares of common stock
and Keystone Options to purchase up to Nine Hundred Twenty Five Thousand Eight Hundred Thirty Three (925,833) shares of common
stock, immediately preceding the effective time of the Merger; and
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The Company shall have delivered evidence of the resignation of Michael E. Markulec and Trent D.
Davis as members of the Company’s Board of Directors.
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The Company shall have made payment under those certain change in control or employment agreements
for Officers of the Parents; and
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The SEC shall have declared the S-4 effective.
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Furthermore,
each party’s obligation to consummate the Merger is further subject to the satisfaction or waiver by that party of the following
additional conditions:
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The representations and warranties of the other party in the Merger Agreement must be true and
correct on the date of the Merger Agreement and true and correct as of the closing date as if made on the closing date;
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The other party to the Merger Agreement must have performed, satisfied and complied in all respects
with the covenants, agreements and conditions required to be performed, satisfied or complied with by the other party in connection
with the consummation of the transactions contemplated by the Merger Agreement at or prior to the closing date;
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The other party must have delivered certain certificates and other documents required under the
Merger Agreement for the closing of the Merger; and
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There shall have been no effect, change, event, circumstance, or development that is or could reasonably
be expected to be materially adverse to, or has or could reasonably be expected to have or result in a material adverse effect
on the business, condition (financial or otherwise), prospects, assets, liabilities or results of operation of the other party,
taken as a whole, or the ability of the other party to consummate the Merger or any of the other transactions contemplated by the
Merger Agreement or to perform any of its covenants or obligations under the Merger Agreement in all material respects, each referred
to as a material adverse effect as it relates to such party.
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Representations and Warranties
The Merger Agreement
contains customary representations and warranties of the Company, DAS and USG for a transaction of this type relating to, among
other things:
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Organization and qualification;
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Conflicts and governmental consents;
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Litigation/compliance with laws, including mining law compliance;
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Intellectual property rights;
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Mine safety disclosures; and
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Compliance with SEC reporting obligations, if applicable.
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The
representations and warranties of Copper King and the Company contained in the Merger Agreement, including exhibits and scheduled
attached to the Merger Agreement, will survive the closing until the first anniversary of the closing date.
Other Agreements
Both the Company and
USG have agreed to use its commercially reasonable efforts to:
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File or otherwise submit all applications, notices, reports and other documents reasonably required to be filed with a governmental
entity with respect to the Merger;
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Take all actions necessary to complete the Merger;
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Coordinate with the other in preparing and exchanging information;
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Obtain all consents, approvals or waivers reasonably required in connection with the transactions contemplated by the Merger
Agreement; and
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Consult and agree with each other about any public statement either will make concerning the Merger.
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AGREEMENTS RELATED
TO THE MERGER
Lock-up Agreements
As a condition to the closing
of the Merger, certain USG security holders have agreed to enter into lock-up agreements, pursuant to which such parties will not
to, except in limited circumstances, sell or transfer, or engage in swap or similar transactions with respect to, shares of the
Company’s Common Stock (including shares of Common Stock issuable upon conversion of Series C Preferred Stock), including,
as applicable, shares received in the Merger from that effective time of the merger until one or two years (as applicable) following
the closing of the Merger. See section entitled “
Merger Consideration
”
in this proxy statement/prospectus.
As
of *, USG shareholders who will execute lock-up agreements will beneficially own * shares of the Company’s Common Stock after
the consummation of the Merger or, in the aggregate, approximately * % of the outstanding shares of the Company’s Common
Stock after the consummation of the Merger.
MATTER BEING SUBMITTED
TO A VOTE OF DATARAM SHAREHOLDERS
PROPOSAL 1
APPROVAL OF THE ACQUISITION OF USG BY THE
COMPANY AND THE ISSUANCE OF AN AGGREGATE OF (A) UP TO 45,880,820 SHARES OF COMMON STOCK (INCLUDING SHARES OF COMMON STOCK ISSUABLE
UPON CONVERSION OF OUR NEWLY DESIGNATED SERIES C PREFERRED STOCK AND MERGER CONSIDERATION), (B) WARRANTS TO PURCHASE UP TO 1,809,436
SHARES OF COMMON STOCK, AND (C) OPTIONS TO PURCHASE UP TO 925,833 SHARES OF COMMON STOCK IN ACCORDANCE WITH THE MERGER AGREEMENT.
The
Company’s shareholders are being asked to approve the Merger and the issuance of the Merger Consideration pursuant to the
terms of the Merger Agreement. Immediately following the consummation of the Merger, it is expected that USG’s shareholders,
will own approximately 90.8% of the fully-diluted Common Stock of the Company, with existing Company shareholders holding approximately
9.2% of the fully-diluted common stock of the Company.
The
terms of, reasons for and other aspects of the Merger Agreement, the Merger and the issuance of the Merger Consideration are described
in detail in the other sections in this proxy statement/prospectus.
Vote Required
The
affirmative vote of a majority of the votes cast for this proposal is required to approve (1) the Merger and (2) the issuance of
an aggregate of (a) up to 45,880,820 shares of the Company’s Common Stock (including shares of Common Stock issuable upon
conversion of our newly designated Series C Preferred Stock and merger consideration), (b) warrants to purchase up to 1,809,436
shares of the Company’s Common Stock in accordance with the Merger Agreement, and (c) options to purchase up to 925,833 shares
of the Company’s Common Stock in accordance with the Merger Agreement. Abstentions and broker non-votes will be counted towards
the tabulation of votes cast on this proposal and will have the same effect as a negative vote. Brokerage firms do not have authority
to vote customers’ un-voted shares held by the firms in street name on this proposal.
THE BOARD RECOMMENDS
THAT OUR SHAREHOLDERS VOTE TO APPROVE THE MERGER AND THE ISSUANCE OF THE MERGER CONSIDERATION, AND PROXIES SOLICITED BY THE BOARD
WILL BE VOTED IN FAVOR THEREOF UNLESS A SHAREHOLDER HAS INDICATED OTHERWISE ON THE PROXY.
PROPOSAL 2
APPROVAL OF AN AMENDMENT TO OUR ARTICLES
OF INCORPORATION TO INCREASE THE AUTHORIZED NUMBER OF SHARES OF COMMON STOCK AND PREFERRED STOCK TO 200,000,000 SHARES FROM 54,000,000
SHARES AND 50,000,000 SHARES FROM 5,000,000 SHARES, RESPECTIVELY.
Purpose and Effect of the Amendment
On September 16, 2016,
the Board approved, subject to the approval of the shareholders, the filing of a certificate of amendment (the “Certificate
of Amendment”), in substantially the form attached hereto as
Annex C
, subject to any changes required by law,
to our Articles of Incorporation to increase our authorized number of shares of Common Stock and Preferred Stock to 200,000,000
shares from 54,000,000 shares and 50,000,000 shares from 5,000,000 shares, respectively.. The Board has directed that the Certificate
of Amendment be submitted to the shareholders at the Special Meeting, with the recommendation that the shareholders adopt the same.
Approval of the Certificate of Amendment is required for the Company to consummate the Merger. Without such approval, the Company
will not have sufficient authorized shares available to issue the Merger Consideration and reserve shares to meet its other obligations
to issue shares, such as upon the conversion of preferred stock or the exercise of warrants or stock options,
If approved by the shareholders,
the Certificate of Amendment will become effective upon filing with the Secretary of State of Nevada. It is anticipated that this
will occur promptly following the date of the Special Meeting.
The Company currently has
54,000,000 authorized shares of Common Stock and 5,000,000 authorized shares of preferred stock. As of the Record Date, the Company
had approximately *shares of Common Stock outstanding and * shares of Series D Preferred Stock designated of which * are outstanding
and convertible into * shares of Common Stock..Excluding the Merger Consideration, the Company has reserved approximately * shares
of Common Stock for potential future issuance pursuant to the Company’s options, warrants, convertible notes and convertible
Series B and D Preferred Stock.
The terms of the additional
shares of Common Stock will be identical to those of the currently outstanding shares of Common Stock. However, because holders
of Common Stock have no preemptive rights to purchase or subscribe for any unissued stock of the Company, the issuance of additional
shares of Common Stock will reduce the current shareholders’ percentage ownership interest in the total outstanding shares
of Common Stock. This amendment and the creation of additional shares of authorized Common Stock will not alter the current number
of issued shares. The relative rights and limitations of the shares of Common Stock will remain unchanged under this amendment.
Our issued and outstanding securities, as of
the Record Date, on a fully diluted basis, are as follows:
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* shares of Common Stock;
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* shares of Common Stock underlying Series D Preferred Stock;
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Warrants to purchase * shares of Common Stock at a weighted average exercise price of $*;
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Options to purchase * shares of Common Stock at a weighted average exercise price of $[•];
and
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Convertible debt and accrued interest which converts into *shares of Common Stock at a weighted
average exercise price of $*.
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The proposed increase in
the authorized number of shares of Common Stock could have a number of effects on the Company's shareholders depending upon the
exact nature and circumstances of any actual issuances of authorized but unissued shares. The increase could have an anti-takeover
effect, in that additional shares could be issued (within the limits imposed by applicable law) in one or more transactions that
could make a change in control or takeover of the Company more difficult. For example, additional shares could be issued by the
Company so as to dilute the stock ownership or voting rights of persons seeking to obtain control of the Company, even if the persons
seeking to obtain control of the Company offer an above-market premium that is favored by a majority of the independent shareholders.
Similarly, the issuance of additional shares to certain persons allied with the Company's management could have the effect of making
it more difficult to remove the Company's current management by diluting the stock ownership or voting rights of persons seeking
to cause such removal. The Company does not have any other provisions in its charter, bylaws, employment agreements, credit agreements
or any other documents that have material anti-takeover consequences. Additionally, the Company has no plans or proposals to adopt
other provisions or enter into other arrangements that may have material anti-takeover consequences. The Board of Directors is
not aware of any attempt, or contemplated attempt, to acquire control of the Company, and this proposal is not being presented
with the intent that it be utilized as a type of anti-takeover device.
Shareholders should recognize
that, as a result of the increase in our authorized Common Stock, they will own a fewer percentage of shares with respect to the
total authorized shares of the Company, than they presently own, and will be diluted as a result of any issuances contemplated
by the Company in the future.
Except as set forth in
Proposal 1, there are currently no plans, arrangements, commitments or understandings for the issuance of the additional shares
of capital stock which are proposed to be authorized.
If approved by the shareholders,
the Certificate of Amendment will become effective upon filing with the Secretary of State of Nevada. It is anticipated that this
will occur promptly following the date of the Special Meeting.
Vote Required
The affirmative vote of
the holders of a majority of the voting capital outstanding is required to amend our Articles of Incorporation to increase our
authorized Common Stock and Preferred Stock to 200,000,000 shares from 54,000,000 shares and 50,000,000 shares from 5,000,000 shares
respectively. Abstentions and broker non-votes will be counted towards the tabulation of votes cast on this proposal and will have
the same effect as a negative vote. Brokerage firms do not have authority to vote customers’ un-voted shares held by the
firms in street name on this proposal.
THE
BOARD RECOMMENDS THAT OUR SHAREHOLDERS VOTE FOR THE APPROVAL TO AMEND OUR ARTICLES OF INCORPORATION TO INCREASE OUR AUTHORIZED
COMMON STOCK AND PREFERRED STOCK TO 200,000,000 SHARES FROM 54,000,000 AND 50,000,000 SHARES FROM 5,000,000 SHARES, RESPECTIVELY
AND PROXIES SOLICITED BY THE BOARD WILL BE VOTED IN FAVOR THEREOF UNLESS A SHAREHOLDER HAS INDICATED OTHERWISE ON THE PROXY.
PROPOSAL 3
AUTHORIZING THE BOARD OF DIRECTORS
TO AMEND OUR AMENDED AND RESTATED ARTICLES
OF INCORPORATION TO EFFECT THE REVERSE SPLIT
Our Board has adopted resolutions
to authorize the Board, in its sole discretion, to (1) amend our Articles of Incorporation to effect a reverse stock split of our
issued and outstanding Common Stock (the "Reverse Split") and (2) directing such proposal to be submitted to the
holders of our voting capital for their approval.
The amendment to our Articles
of Incorporation to effect the Reverse Split of our issued and outstanding Common Stock, if approved by the shareholders, will
be substantially in the form set forth on
Annex D
(subject to any changes required by applicable law). If approved
by the holders of our voting capital, the Reverse Split proposal would permit, but not require, our Board to effect a reverse stock
split of our issued and outstanding Common Stock at any time prior to *by a ratio of not less than 1-for-2 and not more than 1-for-10,
with the exact ratio to be set at a whole number within this range as determined by our Board in its sole discretion. We believe
that enabling our Board to implement the Reverse Split and set the ratio within the stated range will provide us with the flexibility
to implement the Reverse Split in a manner designed to maximize the anticipated benefits for our shareholders. In determining a
ratio, if any, following the receipt of shareholder approval, our Board may consider, among other things, factors such as:
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the initial and continued listing requirements of various stock exchanges, including The NASDAQ
Stock Market;
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the historical trading price and trading volume of our Common Stock;
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the number of shares of our Common Stock outstanding;
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the then-prevailing trading price and trading volume of our Common Stock and the anticipated impact
of the Reverse Split on the trading market for our Common Stock;
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the anticipated impact of a particular ratio on our ability to reduce administrative and transactional
costs; and
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prevailing general market and economic conditions.
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Our Board reserves the
right to elect to abandon the Reverse Split, including any or all proposed reverse stock split ratios, if it determines, in its
sole discretion, that the Reverse Split is no longer in the best interests of the Company and its shareholders.
Depending on the ratio
for the Reverse Split determined by our Board, no less than 2 and no more than 10 shares of existing Common Stock, as determined
by our Board, will be combined into one share of Common Stock. No fractional shares of Common Stock will be issued as a result
of the Reverse Split. Instead, shareholders who otherwise would be entitled to receive a fractional share of Common Stock
as a consequence of the Reverse Split will, upon surrender to the exchange agent of the certificates representing such
fractional shares, be entitled to receive cash in an amount equal to the product obtained by multiplying (i) the closing sale price
of the Company’s Common Stock on the business day immediately preceding the effective date of the Reverse Split as reported
on the NASDAQ Capital Market by (ii) the number of shares of the Company’s Common Stock held by the shareholder that would
otherwise have been exchanged for the fractional share interest.
The amendment to our Articles
of Incorporation to effect the Reverse Split, if any, will include only the Reverse Split ratio determined by our Board to be in
the best interests of our shareholders and all of the other proposed amendments at different ratios will be abandoned.
Background and Reasons for the Reverse Split;
Potential Consequences of the Reverse Split
Our Board is submitting
the Reverse Split to our shareholders for approval with the primary intent of increasing the market price of our Common Stock which
may enhance liquidity and to make our Common Stock more attractive to a broader range of investors. The Company currently does
not have any plans, arrangements or understandings, written or oral, to issue any of the authorized but unissued shares that would
become available as a result of the Reverse Split. In addition to increasing the market price of our Common Stock and enhancing
liquidity, the Reverse Split would also reduce certain of our costs, as discussed below. Accordingly, for these and other reasons
discussed below, we believe that effecting the Reverse Split is in the Company's and our shareholders' best interests.
We believe that the Reverse
Split, if implemented, will make our Common Stock more attractive to a broader range of institutional and other investors, as we
believe that the current market price of our Common Stock may affect its acceptability to certain institutional investors, professional
investors and other members of the investing public. Many brokerage houses and institutional investors have internal policies and
practices that either prohibit them from investing in low-priced stocks or tend to discourage individual brokers from recommending
low-priced stocks to their customers. In addition, some of those policies and practices may function to make the processing of
trades in low-priced stocks economically unattractive to brokers. Moreover, because brokers' commissions on low-priced stocks generally
represent a higher percentage of the stock price than commissions on higher-priced stocks, the current average price per share
of Common Stock can result in individual shareholders paying transaction costs representing a higher percentage of their total
share value than would be the case if the share price were substantially higher. We believe that, if approved and implemented by
our Board, the Reverse Split will make our Common Stock a more attractive and cost effective investment for many investors, which
will enhance the liquidity of the holders of our Common Stock.
Reducing the number of
outstanding shares of our Common Stock through the Reverse Split is intended, absent other factors, to increase the per share market
price of our Common Stock. However, other factors, such as our financial results, market conditions and the market perception of
our business may adversely affect the market price of our Common Stock. As a result, there can be no assurance that the Reverse
Split, if implemented, will result in the intended benefits described above, that the market price of our Common Stock will increase
following the Reverse Split or that the market price of our Common Stock will not decrease in the future. Additionally, we cannot
assure you that the market price per share of our Common Stock after a Reverse Split will increase in proportion to the reduction
in the number of shares of our Common Stock outstanding before the Reverse Split. Accordingly, the total market capitalization
of our Common Stock after the Reverse Split may be lower than the total market capitalization before the Reverse Split.
Procedure for Implementing the Reverse Split
The Reverse Split, if approved
by our shareholders, would become effective upon the filing of a certificate of amendment to our Articles of Incorporation with
the Secretary of State of the State of Nevada. The exact timing of the filing of the certificate of amendment that will affect
the Reverse Split will be determined by our Board based on its evaluation as to when such action will be the most advantageous
to the Company and our shareholders. In addition, our Board reserves the right, notwithstanding shareholder approval and without
further action by the shareholders, to elect not to proceed with the Reverse Split if, at any time prior to filing the amendment
to the Company's Articles of Incorporation, our Board, in its sole discretion, determines that it is no longer in our best interest
and the best interests of our shareholders to proceed with the Reverse Split. If a certificate of amendment effecting the Reverse
Split has not been filed with the Secretary of State of the State of Nevada by the close of business on *, 2017, our Board will
abandon the Reverse Split.
Effect of the Reverse Split on Holders of
Outstanding Common Stock
Depending on the ratio
for the Reverse Split determined by our Board, a minimum of two (2) and a maximum of ten (10) shares of existing Common Stock will
be combined into one new share of Common Stock. The table below shows, based on the * shares of Common Stock outstanding as
of the Record Date, the number of outstanding shares of Common Stock (excluding Treasury shares) that would result from the listed
hypothetical reverse stock split ratios:
Reverse Stock Split Ratio
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Approximate Number of Outstanding Shares of Common
Stock
Following the Reverse Stock Split
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1-for-2
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[_______]
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1-for-3
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[_______]
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1-for-4
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[_______]
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1-for-5
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[_______]
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1-for-6
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[_______]
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1-for-7
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[_______]
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1-for-8
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[_______]
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1-for-9
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[_______]
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1-for-10
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[_______]
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The actual number of shares
issued after giving effect to the Reverse Split, if implemented, will depend on the Reverse Split ratio that is ultimately determined
by our Board.
The Reverse Split will
affect all holders of our Common Stock uniformly and will not affect any shareholder's percentage ownership interest in the Company. In
addition, the Reverse Split will not affect any shareholder's proportionate voting power.
The Reverse Split may result
in some shareholders owning "odd lots" of less than 100 shares of Common Stock. Odd lot shares may be more difficult
to sell, and brokerage commissions and other costs of transactions in odd lots are generally somewhat higher than the costs of
transactions in "round lots" of even multiples of 100 shares.
After the effective time,
our Common Stock will have new Committee on Uniform Securities Identification Procedures ("CUSIP") numbers, which is
a number used to identify our equity securities, and stock certificates with the older CUSIP numbers will need to be exchanged
for stock certificates with the new CUSIP numbers by following the procedures described below. After the Reverse Split, we will
continue to be subject to the periodic reporting and other requirements of the Exchange Act. Our Common Stock will continue to
be listed on The NASDAQ Capital Market under the symbol "DRAM”, subject to any decision of our Board to list our securities
on another stock exchange.
Beneficial Holders of Common Stock (i.e.
shareholders who hold in street name)
Upon the implementation
of the Reverse Split, we intend to treat shares held by shareholders through a bank, broker, custodian or other nominee in the
same manner as registered shareholders whose shares are registered in their names. Banks, brokers, custodians or other nominees
will be instructed to effect the Reverse Split for their beneficial holders holding our Common Stock in street name. However, these
banks, brokers, custodians or other nominees may have different procedures than registered shareholders for processing the Reverse
Split. Shareholders who hold shares of our Common Stock with a bank, broker, custodian or other nominee and who have any questions
in this regard are encouraged to contact their banks, brokers, custodians or other nominees.
Registered "Book-Entry" Holders
of Common Stock (i.e. shareholders that are registered on the transfer agent's books and records but do not hold stock certificates)
Certain of our registered
holders of Common Stock may hold some or all of their shares electronically in book-entry form with the transfer agent. These shareholders
do not have stock certificates evidencing their ownership of the Common Stock. They are, however, provided with a statement reflecting
the number of shares registered in their accounts.
Shareholders who hold shares
electronically in book-entry form with the transfer agent will not need to take action (the exchange will be automatic) to receive
whole shares of post-Reverse Split Common Stock.
Holders of Certificated Shares of Common
Stock
Shareholders holding shares
of our Common Stock in certificated form will be sent a transmittal letter by our exchange agent after the effective time. The
letter of transmittal will contain instructions on how a shareholder should surrender his, her or its certificate(s) representing
shares of our Common Stock (the "Old Certificates") to the exchange agent in exchange for certificates representing the
appropriate number of whole shares of post-Reverse Split Common Stock (the "New Certificates"). No New Certificates will
be issued to a shareholder until such shareholder has surrendered all Old Certificates, together with a properly completed and
executed letter of transmittal, to the exchange agent. No shareholder will be required to pay a transfer or other fee to exchange
his, her or its Old Certificates. Shareholders will then receive a New Certificate(s) representing the number of whole
shares of Common Stock that they are entitled as a result of the Reverse Split, subject to the treatment of fractional shares described
below. Until surrendered, we will deem outstanding Old Certificates held by shareholders to be cancelled and only to represent
the number of whole shares of post-Reverse Split Common Stock to which these shareholders are entitled, subject to the treatment
of fractional shares. Any Old Certificates submitted for exchange, whether because of a sale, transfer or other disposition of
stock, will automatically be exchanged for New Certificates. If an Old Certificate has a restrictive legend on the back of the
Old Certificate(s), the New Certificate will be issued with the same restrictive legends that are on the back of the Old Certificate(s).
SHAREHOLDERS SHOULD NOT DESTROY ANY STOCK
CERTIFICATE(S) AND SHOULD NOT SUBMIT ANY STOCK CERTIFICATE(S) UNTIL REQUESTED TO DO SO.
Fractional Shares
No fractional shares of
Common Stock will be issued as a result of the Reverse Split. Instead, shareholders who otherwise would be entitled to receive
a fractional share of Common Stock as a consequence of Reverse Split will, upon surrender to the exchange agent of the certificates
representing such fractional shares, be entitled to receive cash in an amount equal to the product obtained by multiplying (i)
the closing sale price of the Company’s Common Stock on the business day immediately preceding the effective date of the
Reverse Split as reported on the NASDAQ Capital Market by (ii) the number of shares of the Company’s Common Stock held by
the shareholder that would otherwise have been exchanged for the fractional share interest.
Effect of the Reverse Split on Employee
Plans, Options, Restricted Stock Awards and Units, Warrants, and Convertible or Exchangeable Securities
Based upon the Reverse
Split ratio determined by the Board, proportionate adjustments are generally required to be made to the per share exercise price
and the number of shares issuable upon the exercise or conversion of all outstanding options, warrants, convertible or exchangeable
securities entitling the holders to purchase, exchange for, or convert into, shares of Common Stock. This would result in approximately
the same aggregate price being required to be paid under such options, warrants, convertible or exchangeable securities upon exercise,
and approximately the same value of shares of Common Stock being delivered upon such exercise, exchange or conversion, immediately
following the Reverse Split as was the case immediately preceding the Reverse Split. The number of shares deliverable upon
settlement or vesting of restricted stock awards will be similarly adjusted, subject to our treatment of fractional shares. The
number of shares reserved for issuance pursuant to these securities will be proportionately based upon the Reverse Split ratio
determined by the Board, subject to our treatment of fractional shares.
Accounting Matters
The proposed amendment
to the Company's Articles of Incorporation will not affect the par value of our Common Stock, which will remain $0.001 par value
per share. As a result, as of the effective time, the stated capital attributable to Common Stock and the additional paid-in capital
account on our balance sheet will not change due to the Reverse Split. Reported per share net income or loss will be higher because
there will be fewer shares of Common Stock outstanding.
Not a Going Private Transaction
Notwithstanding the decrease
in the number of outstanding shares following the implementation of the Reverse Split, the Board does not intend for this transaction
to be the first step in a "going private transaction" within the meaning of Rule 13e-3 of the Exchange Act, and the implementation
of the proposed Reverse Split will not cause the Company to go private.
Certain Federal Income Tax Consequences
of the Reverse Split
The following summary describes
certain material U.S. federal income tax consequences of the Reverse Split to holders of our Common Stock:
Unless otherwise specifically
indicated herein, this summary addresses the tax consequences only to a beneficial owner of our Common Stock that is a citizen
or individual resident of the United States, a corporation organized in or under the laws of the United States or any state thereof
or the District of Columbia or otherwise subject to U.S. federal income taxation on a net income basis in respect of our Common
Stock (a "U.S. holder"). A trust may also be a U.S. holder if (1) a U.S. court is able to exercise primary supervision
over administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust
or (2) it has a valid election in place to be treated as a U.S. person. An estate whose income is subject to U.S. federal
income taxation regardless of its source may also be a U.S. holder. This summary does not address all of the tax consequences that
may be relevant to any particular investor, including tax considerations that arise from rules of general application to all
taxpayers or to certain classes of taxpayers or that are generally assumed to be known by investors. This summary also does not
address the tax consequences to (i) persons that may be subject to special treatment under U.S. federal income tax law, such
as banks, insurance companies, thrift institutions, regulated investment companies, real estate investment trusts, tax-exempt organizations,
U.S. expatriates, persons subject to the alternative minimum tax, traders in securities that elect to mark to market and dealers
in securities or currencies, (ii) persons that hold our Common Stock as part of a position in a "straddle" or as
part of a "hedging," "conversion" or other integrated investment transaction for federal income tax purposes,
or (iii) persons that do not hold our Common Stock as "capital assets" (generally, property held for investment).
If a partnership (or other
entity classified as a partnership for U.S. federal income tax purposes) is the beneficial owner of our Common Stock, the U.S.
federal income tax treatment of a partner in the partnership will generally depend on the status of the partner and the activities
of the partnership. Partnerships that hold our Common Stock and partners in such partnerships, should consult their own tax advisors
regarding the U.S. federal income tax consequences of the Reverse Split.
This summary is based on
the provisions of the Internal Revenue Code of 1986, as amended, U.S. Treasury regulations, administrative rulings and judicial
authority, all as in effect as of the date of this proxy statement. Subsequent developments in U.S. federal income tax law, including
changes in law or differing interpretations, which may be applied retroactively, could have a material effect on the U.S. federal
income tax consequences of the Reverse Split.
PLEASE CONSULT YOUR
OWN TAX ADVISOR REGARDING THE U.S. FEDERAL, STATE, LOCAL, AND FOREIGN INCOME AND OTHER TAX CONSEQUENCES OF THE REVERSE SPLIT IN
YOUR PARTICULAR CIRCUMSTANCES UNDER THE INTERNAL REVENUE CODE AND THE LAWS OF ANY OTHER TAXING JURISDICTION.
U.S. Holders
The Reverse Split should
be treated as a recapitalization for U.S. federal income tax purposes. Therefore, a shareholder generally will not recognize gain
or loss on the Reverse Split, except to the extent of cash, if any, received in lieu of a fractional share interest in the post-Reverse
Split shares. The aggregate tax basis of the post-split shares received will be equal to the aggregate tax basis of the pre-split
shares exchanged therefore (excluding any portion of the holder's basis allocated to fractional shares), and the holding period
of the post-split shares received will include the holding period of the pre-split shares exchanged. A holder of the pre-split
shares who receives cash will generally recognize gain or loss equal to the difference between the portion of the tax basis of
the pre-split shares allocated to the fractional share interest and the cash received. Such gain or loss will be a capital gain
or loss and will be short term if the pre-split shares were held for one year or less and long term if held more than one year.
No gain or loss will be recognized by us as a result of the Reverse Split.
Vote Required
The affirmative vote of
the holders of a majority of the shares of voting capital outstanding is required to approve the Reverse Split. Abstentions and
broker non-votes will be counted towards the tabulation of votes cast on this proposal and will have the same effect as a negative
vote. Brokerage firms do not have authority to vote customers’ un-voted Shares held by the firms in street name on this proposal.
THE BOARD RECOMMENDS THAT OUR SHAREHOLDERS
VOTE TO APPROVE AN AMENDMENT TO OUR ARTICLES OF INCORPORATION TO EFFECT THE REVERSE SPLIT.
DATARAM’S
BUSINESS
The Company is incorporated
in the State of Nevada and was originally incorporated in the State of New Jersey in 1967. The Company’s Common Stock is
traded on The NASDAQ Capital Market under the symbol "DRAM."
On July 6, 2016, the Company
filed a certificate of amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada in order to
effectuate a reverse stock split of the Company’s issued and outstanding Common Stock on a 1 for 3 basis. The reverse stock
split was effective on July 11, 2016. Except where otherwise indicated, all per share amounts reflect the reverse stock split.
The Company's principal
executive office is located at 777 Alexander Road, Suite 100, Princeton, New Jersey, 08540, its telephone number is (609) 799-0071,
its fax is (609) 799-6734, and its website is located at http://www.dataram.com.
Since 1967, Dataram has
been an independent manufacturer of memory products and provider of performance solutions. The Company provides customized memory
solutions for original equipment manufacturers (OEMs) and compatible memory for leading brands including Cisco, Dell, Fujitsu,
HP, IBM, Lenovo and Oracle as well as a line of memory products for Intel and AMD motherboard based servers. Dataram manufactures
its memory in-house to meet three key criteria - quality, compatibility, and selection - and tests its memory for performance and
OEM compatibility as part of the production process. With memory designed for over 50,000 systems and with products that
range from energy-efficient DDR4 modules to legacy SDR offerings, Dataram offers one of the most complete portfolios in the industry. The
Company is a CMTL Premier Participant and ISO 9001 (2008 Certified). Its products are fully compliant with JEDEC Specifications.
Dataram’s customers
include an international network of distributors, resellers, retailers, OEM customers and end users.
Dataram competes with several
other large independent memory manufacturers and the OEMs noted above. The primary raw material used in producing memory boards
is dynamic random access memory (DRAM) chips. The purchase cost of DRAMs is the largest single component of the total cost of a
finished memory board. Consequently, average selling prices for computer memory boards are significantly dependent on the pricing
and availability of DRAM chips.
In addition to memory products,
Dataram offers solutions that provide its customers significant and quantifiable cost savings (reduction in total cost of ownership)
while helping them manage end-of-life transitions. These include:
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Design and engineering services
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Contract and flexible manufacturing to accommodate special customer needs
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Simulation labs for testing and validation
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Financial programs and trade-in / trade-up programs to allow customers to optimize memory procurements
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Software tools to assess memory needs and optimize memory deployment and application performance
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Dataram has four business
lines which provide complementary solutions to the market. Each has a different customer focus and “go to market”
approach. They are:
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Dataram / Princeton Memory
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Micro Memory Bank (MMB)
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The Dataram / Princeton
Memory Business provides innovative new memory products that support enterprise / mission critical need; custom and high end memory
solutions for most demanding customers ranging from enterprise and data center segments to power users and gamers; provides solutions
to extend the density memory options available to customers. The business also provides:
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Memory Solutions Services;
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Performance optimization, total cost of computing reduction consulting;
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Engineering and design services for embedded applications;
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Proof of concept engagements;
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Customized consignment programs;
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Product on-demand offerings;
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Software: products that improve application and computing performance; and
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Buy-back program: in conjunction with the MMB business, provides customers with opportunity
to “trade-in” existing memory as part of a sale with trade-in credited towards purchase of new memory.
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The
Micro Memory Bank business provides new and refurbished memory products which are not commonly available. These solutions
extend the life of the system where memory is no longer available by the OEM, helping companies avoid the cost of additional hardware
expenditures. The business also provides:
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Brokerage services: makes opportunistic purchases of excess surplus inventories for less
than market price; also buys unknown inventory which is then opened, cataloged, and sometimes refurbished;
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Buy-back program: works with Princeton business to provide customers with opportunity to “trade-in”
existing memory as part of a sale with trade-in credited towards purchase of new memory. Memory traded-in is refurbished
and then sold; and
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Technology recycling program: provides end of life recycling services to customers across all IT
hardware categories including laptops, desktops, workstations, servers, main frames, hubs and switches.
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Operating since 1994, 18004Memory.com
web property provides a one-stop source for new and refurbished memory products used in desktops, laptops, notebooks, servers,
MAC systems, printers, digital cameras, PDAs, MP3 players, and more. They provide memory upgrades for all major brands including
Compaq, Dell, Apple, Hewlett-Packard, Toshiba, IBM, Gateway, Sony, Fujitsu, and Acer. Products are backed by a limited lifetime
warranty on all computer memory and 30-day money back guarantee.
The Memorystore.com web
property provides a one-stop web source for “Dataram Value Memory” products used in desktops, laptops, notebooks, servers,
workstations, and MAC systems. Dataram Value Memory is memory specifically designed and tested to meet industry standards.
It is purchased by customers who know the exact technical specifications of the memory they need. Dataram Value Memory is fully
compliant with JEDEC Specifications. It is 100-percent tested and backed by a limited lifetime warranty.
Following
an extensive process of evaluating strategic alternatives for the Company and identifying and reviewing potential candidates for
a strategic acquisition or other transaction, on June 13, 2016, the Company into an Agreement and Plan of Merger, as amended and
restated on July 29, 2016, with DAS, USG and Copper King pursuant to which USG will be merged with and into DAS, with USG surviving
the Merger as the surviving corporation and the Company’s wholly-owned subsidiary. If the Merger is consummated, the business
of the Company’s wholly-owned subsidiary will be gold exploration as described on under the section “USG’s Business”.
If the Merger is not consummated, the Company will reconsider its strategic alternatives and may resume its process of evaluating
other companies with which to merge and, if a candidate is identified, focus its attention on completing such a transaction.
Industry Background
The market for the Company's
memory products is principally the buyers and owners of workstations, servers and the OEMs that manufacture workstations, servers
and other products that use embedded computers. These systems have been important to the growth of the Internet.
The OEM market is also
an important part of the Company's business. We believe that increasingly cost conscious OEMs are looking to independent memory
suppliers such as the Company for the low-cost supply of memory modules.
A workstation, like a PC,
is designed to provide computer resources to individual users. A workstation differs from a PC by providing substantially greater
computational performance, input/output capability and graphic display. Workstations are nearly always networked. As a result of
this networking capability of both workstations and PCs, we believe the value of the network server has increased.
Network servers are computer
systems on a network which provide dedicated functions accessible by all workstations and other systems on the same network. Examples
of different types of servers in use today are: file servers, communication servers, computation servers, database servers, print
servers and storage servers.
The Company designs, produces
and markets memory products for workstations and computer servers sold by Cisco, Dell, Fujitsu, HP, IBM, Lenovo, and Oracle. Additionally,
the Company produces and markets memory for Intel and AMD processor based motherboards for use by OEMs and channel assemblers.
The "open system"
philosophy espoused by most of the general computer industry has played a part in enlarging the market for third party vendors.
Under the "open system" philosophy, manufacturers adhere to industry design standards, enabling users to "mix and
match" hardware and software products from a variety of vendors so that a system can be configured for the user's application
in the most economical manner with reduced concern for compatibility and support. Memory products for workstations and servers
have become commodities with substantial competition from OEMs and a number of independent memory manufacturer suppliers.
Products
The Company's principal
business is the development, manufacture and marketing of memory modules which can be installed initially or, added to various
enterprise servers and workstations to upgrade or expand the capabilities of such systems. When vendors produce computer systems
adhering to open system industry standards, the development effort for the Company and other independent memory manufacturers is
straightforward and allows for the use of many standard components.
Our
RAMDisk software product creates a virtual RAM drive, or block of memory, which a computer treats as if it were a disk drive. By
storing files and programs into memory, a user can speed up internet load times, disk-to-disk activities, accelerate databases
and reduce compile times. The product features a save and load option that allows RAMDisk to appear as persistent storage, even
through reboots. RAMDisk has developed a strong presence in both the consumer and commercial marketplace. RAMDisk software has
also been licensed and integrated into specialized commercial products. RAMDisk is also capable of extending the longevity of expensive
solid state storage devices by housing writes which tend to wear out these devices.
In
the fourth quarter of fiscal year ended April 30, 2015, with the recommendation of the Board of Directors, the Company chose to
terminate its agreement with AMD to manufacture and sell memory modules for the consumer market branded as AMD under the name Radeon
to refocus on its core strength of memory products for the business market.
Distribution
The Company sells its memory
products to OEMs, distributors, value-added resellers and larger end-users. The Company also sells its memory products through
various internet channels. The Company has sales and/or marketing support offices in the USA and Europe.
Product Warranty and Service
Management believes that
the Company's reputation for the reliability of its memory products and the confidence of prospective purchasers in the Company's
ability to provide service over the life of the product are important factors in making sales. As a consequence, the Company adopted
a Limited Lifetime Warranty program for its memory products. The economic useful life of the computer systems to which the Company's
memory modules are attached is almost always substantially less than the physical useful life of the Company's memory products.
Thus, our memory products are unlikely to "wear out." The Company's experience is that less than 1% of all the products
it sells are returned under the Lifetime Warranty.
DRAM Prices
The memory product business
is heavily dependent upon the price of DRAMs. Producers of DRAM are required to invest substantial capital resources to produce
their end product. Their marginal cost is low as a percentage of the total cost of the product. As a result, the world-wide market
for DRAMs has swung in the past from period to period from oversupply to shortage. During periods of substantial oversupply, the
Company has seen falling prices for DRAMs and wide availability of DRAMs allowing the Company to maintain minimum inventories to
meet the needs of customers. During periods of shortages, DRAMs are allocated to customers and the Company must invest heavily
in inventory in order to continue to be assured of the supply of DRAMs from vendors. At the present time, the market for DRAMs
is soft, but with spot shortages of certain DRAM configurations.
Memory Product Complexity
DRAM memory products for
workstations and enterprise servers have, for many years, been undergoing a process of simplification with a corresponding decline
in profit margins for current generation memory products as competitors' entry into the market becomes easier. Memory products
for prior generations of workstations and servers are sold with higher margins as few competitors continue to supply memory for
those computers.
Engineering
The Company's ability to
compete successfully depends upon its ability to identify new memory needs of its customers. To achieve this goal, the Company's
engineering group continually monitors computer system vendor’s new product developments, and the Company evaluates and tests
major components as they become available. The Company designs prototype memory modules and subjects them to reliability testing
procedures. The Company incurred engineering costs of $191,000 in the fiscal year ended April 30, 2016 and $768,000 in the fiscal
year ended April 30, 2015. The engineering cost reduction was primarily the result of software development cost associated with
a project that was suspended in January 2015.
Raw Materials
The Company purchases industry
standard DRAMs. The Company also purchases finished modules from DRAM manufacturers. In either case, the cost of DRAM chips is
the largest single component of the total cost of our memory products. Fluctuations in the availability or prices of DRAMs can
have a significant impact on the Company's profit.
The Company has created
close relationships with a number of primary suppliers while qualifying and developing alternate sources as backups. The qualification
program consists of extensive evaluation of process capabilities, on-time delivery performance and the financial stability of each
supplier. Alternative sources are used to assure supply in the event of a problem with the primary source or to handle surges in
demand.
Manufacturing
The Company assembles its
memory boards at its manufacturing facility in Pennsylvania.
Backlog
The Company expects that
all of the backlog on hand will be filled during the current fiscal year and most in the first quarter of the fiscal year ending
April 30, 2017. The Company's backlog at April 30, 2016 was $274,000 and at April 30, 2015 was $98,000. Product backlog at any
point in time may not translate into net revenue in any subsequent period, as unfilled orders can generally be canceled at any
time by the customer.
Competition
The intensely competitive
computer industry is characterized by rapid technological change and constant pricing pressures. These characteristics are equally
applicable to the third party memory market, where pricing is a major consideration in the buying decision. The Company competes
with HP, Sun Microsystems, IBM, and Dell, as well as with a number of third party memory suppliers, including Kingston Technology.
Although many of the Company's
competitors possess significantly greater financial, marketing and technological resources, the Company competes favorably based
on the buying criteria of price/performance, time-to-market, product quality, reliability, service/support, breadth of product
line and compatibility with computer system vendors' technology. The Company's objective is to continue to remain strong in all
of these areas with particular focus on price/performance and time-to-market, which management believes are two of the more important
criteria in the selection of third party memory product suppliers. Market research and analysis capability by the Company is necessary
to ensure timely information on new products and technologies coming from the computer system vendors and from the overall memory
market. The Company must continue low cost, high volume production while remaining flexible to satisfy the time-to-market requirement.
Patents, Trademarks and Licenses
The Company believes that
its success depends primarily upon the price and performance of its products rather than on ownership of copyrights or patents.
Sale of memory products
for systems that use proprietary memory design may from time to time give rise to claims of copyright or patent infringement. In
most such instances the Company has products that either do not violate such patents or copyrights or obtained a license.
Because of rapid technological
development in the computer industry with concurrent extensive patent coverage and the rapid rate of issuance of new patents, questions
of infringement may continue to arise in the future. If such patents or copyrights are issued in the future, the Company believes,
based upon industry practice, that any necessary licenses would be obtainable upon the payment of reasonable royalties.
Employees
As of December 23, 2016,
the Company had 20 full-time salaried employees and 10 hourly employees. The Company believes it has satisfactory relationships
with its employees. None of the Company's employees are covered by a collective bargaining agreement.
Environmental
Compliance with federal,
state and local provisions which have been enacted or adopted to regulate the protection of the environment does not have a material
effect upon the capital expenditures, earnings and competitive position of the Company. The Company did not make any material expenditures
for environmental control facilities in the current fiscal year, nor does the Company expect to make material expenditure in the
fiscal year ending April 30, 2017.
Financial information about geographic area
sales
For the last two fiscal
years the Company has had sales in the following geographic areas:
REVENUES (000's)
Export
Fiscal
|
|
U.S.
|
|
Europe
|
|
Other*
|
|
Consolidated
|
|
2016
|
|
|
$
|
19,713
|
|
|
$
|
4,405
|
|
|
$
|
1,064
|
|
|
$
|
25,182
|
|
|
2015
|
|
|
$
|
23,285
|
|
|
$
|
3,785
|
|
|
$
|
1,188
|
|
|
$
|
28,258
|
|
PERCENTAGES
Export
Fiscal
|
|
U.S.
|
|
Europe
|
|
Other*
|
|
Consolidated
|
|
2016
|
|
|
|
78.3%
|
|
|
|
17.5%
|
|
|
|
4.2%
|
|
|
|
100.0%
|
|
|
2015
|
|
|
|
82.4%
|
|
|
|
13.4%
|
|
|
|
4.2%
|
|
|
|
100.0%
|
|
*Principally Asia Pacific
Region
Properties
The Company occupies 2,865
square feet of space for administrative, sales, research and development and manufacturing support in Princeton, New Jersey under
a lease expiring on April 30, 2020.
The Company leases 17,500
square feet of assembly plant and office space in Montgomery County, Pennsylvania. The lease expires on March 31, 2017.
Rent expense amounted to
approximately $316,000 and $432,000 for the fiscal years ended April 30, 2016 and 2015, respectively.
Legal
Proceedings
Effective as of the close
of business on December 17, 2014, the Company terminated its agreement with MPP Associates, Inc., pursuant to which Marc P. Palker
had been providing CFO services to the Company. On April 8, 2015, MPP Associates, Inc. and Mr. Palker filed a complaint, styled
MPP Associates, Inc. and Marc Palker v. Dataram Corporation, Jon Isaac, David Moylan, Michael Markulec and Richard Butler, in the
Superior Court of the State of New Jersey, Essex County, Docket No. ESX-L-002413-15.
Effective as of the close
of business on January 22, 2015, the Company terminated the employment agreement with John H. Freeman, its former Chief Executive
Officer. On April 9, 2015, Mr. Freeman filed a complaint, styled John Freeman v. Dataram Corporation, David A. Moylan, Jon Isaac,
and John Does 1-5, in the Superior Court of the State of New Jersey, Essex County, Docket No. ESX-L-002471-15.
Similarly, on April 10,
2015, the Company filed an action against Mr. Freeman, Mr. Palker and MPP Associates, Inc., styled as Dataram Corporation v. John
Freeman, Marc Palker and MPP Associates, Inc., in the Superior Court of the State of New Jersey, Mercer County, Docket No. ESX-L-000886-15.
The aforementioned three
State Court actions described have been consolidated in Essex County.
On March 9, 2015, Marc
Palker filed a complaint against the Company with the U.S. Department of Labor, Occupational Safety and Health Administration,
alleging a violation of the Sarbanes-Oxley Act of 2002.
On June 26, 2015, Alethea
Douglas, a former employee, filed a complaint against the Company with the U.S. Equal Employment Opportunity Commission, alleging
a claim for age discrimination in connection with the termination of her employment effective May 20, 2015.
A range of loss, if any,
on the aforementioned matters cannot be estimated at this point in time.
US GOLD’s (USG’s) BUSINESS
U.S. Gold Corp. is an exploration
stage company that owns certain mining leases and other mineral rights. On July 2, 2014, USG entered into an asset purchase agreement
with Wyoming Gold Mining Company, Inc. (“Wyoming Gold”) for the purchase of the Copper King gold and copper development
project located in the Silver Crown Mining district of southwest Wyoming (the “Copper King Project”). On May 27, 2016,
USG acquired certain unpatented mining claims related to a gold development project in Eureka County, Nevada from Nevada Gold Ventures,
LLC (“Nevada Gold”) and Americas Gold Exploration, Inc. (the “Key Stone Project”). Subsequent to this acquisition,
USG acquired 71 additional unpatented lode mining claims
US Gold Corp. principal executive
office is located at Suite 102, Box 604, 1910 East Idaho Street, Elko, Nevada 89801, its telephone number is (755) 888-4060, and
its website is located at http://usgoldcorp.co/.
Copper
King Project
The Copper King Project is located
in southeastern Wyoming, approximately 32km west of the city of Cheyenne, on the southeastern margin of the Laramie Range. The
property covers about five square kilometers that include the S½ Section 25, NE¼ Section 35, and all of Section 36,
T.14N., R.70W.,Sixth Principal Meridian. Access to within 1.5km of the property is provided by paved and maintained gravel roads.
An easement agreement providing access for exploration and other minimal impact activities has been negotiated with Ferguson Ranch
Inc. on the S½ Section 25, T14N, R70W, and the W½ Section 30, T14N, R69W. The fee for this easement is $10,000 per
year, renewable each year prior to July 11.
The Copper King property covers
453 contiguous hectares (approximately five square kilometers) that include the S½ of Section 25, NE¼ Section 35,
and all of Section 36, T.14N., R.70W. The Copper King Project is entirely located on land owned and administered by the State of
Wyoming. There are no Federal lands within or adjoining the Copper King land position. Curt Gowdy State Park lies northwest of
the property, partially within Section 26. The state park’s southeastern boundary is approximately 300m northwest of the
property and approximately 900m northwest of the mineralized area. The Copper King property position consists of two State of Wyoming
Metallic and Non-metallic Rocks and Minerals Mining Leases.
USG’s
rights to the Copper King Project are derived from two mineral leases from the State of Wyoming.
Ownership of the mineral
rights remains in the possession of the State of Wyoming as conveyed to the state by the United States. The State of Wyoming issued
the mineral leases to Wyoming Gold in 2013 and 2014 and Wyoming Gold assigned both leases to USG on June 23, 2014.
The following production royalties
must be paid to the State of Wyoming; provided, however, that once the Copper King Project is in operation, the Board of Land Commissioners
has the authority to reduce the royalty payable to the State:
FOB Mine Value per Ton
|
Percentage Royalty
|
$00.00 to $50.00
|
5%
|
$50.01 to $100.00
|
7%
|
$100.01 to $150.00
|
9%
|
$150.01 and up
|
10%
|
History of Prior Operations and Exploration on the
Copper King Project
Limited exploration and mining
were conducted on the Copper King property in the late 1880s and early 1900s. Approximately 300 tons of material was reported to
have been produced from a now inaccessible 160 foot-deep shaft with two levels of cross-cuts. A few small adits and prospect pits
with no significant production are scattered throughout the property.
Since 1938, at least nine historic
(pre-Strathmore) drilling campaigns by at least seven companies and the U. S. Bureau of Mines have been conducted at Copper King.
The current project database contains 91 drill holes aggregating 37,500 feet that were drilled before Wyoming Gold acquired the
property. All but six of the drill holes are within the current resource area. Other work conducted at Copper King by previous
companies has included ground and aeromagnetic surveys as well as induced polarization surveys along with geochemical sampling,
geologic mapping, and a number of metallurgical studies.
Wyoming Gold conducted an exploration
drill program in 2007 and 2008. Thirty-five diamond core drill holes were completed for an aggregate of 25,500 feet. The exploration
permit, 360DN, has been terminated and the bond released. The focus of Wyoming Gold’s work was to confirm and potentially
expand the mineralized body outlined in the previous drill campaigns, increase the geologic and geochemical database leading to
the creation of the current geologic model and resource estimate, and to provide material for further metallurgical testing. The
Copper King assay database for approximately 120 holes contains 8,357 gold assays and 8,225 copper assays. At least 10 different
organizations or individuals conducted metallurgical studies on the gold-copper mineralization at the request of prior operators
between 1973 and 2009. It was concluded that the process with the highest potential to yield good extractions of gold and copper
would likely be flotation, followed by cyanidation of the flotation tailings. Core is stored in the following two public storage
facilities: AAA in Cheyenne, Wyoming and Absaroka in Dubois, Wyoming.
Geological Summary of the Copper King Project
The Copper King Project
is underlain by Proterozoic rocks that make up the southern end of the Precambrian core of the Laramie Range. Metavolcanic and
metasedimentary rocks of amphibolite-grade metamorphism are intruded by the approximately1.4 billion year old Sherman Granite and
related felsic rocks. Within the project area, foliated granodiorite is intruded by aplitic quartz monzonite dikes, thin mafic
dikes and younger pegmatite dikes. Shear zones with cataclastic foliation striking N60°E to N60°W are found in the southern
part of the Silver Crown district, including at Copper King. The granodiorite typically shows potassium enrichment, particularly
near contacts with quartz monzonite. Copper and gold mineralization occurs primarily in unfoliated to mylonitic granodiorite. The
mineralization is associated with a N60°W-trending shear zone and disseminated and stockwork gold-copper deposits in the intrusive
rocks. Some authors have categorized it as a Proterozoic porphyry gold-copper deposit. Hydrothermal alteration is overprinted on
retrograde greenschist alteration and includes a central zone of silicification, followed outward by a narrow potassic zone, surrounded
by propylitic alteration. Higher-grade mineralization occurs within a central core of thin quartz veining and stockwork mineralization
that is surrounded by a zone of lower-grade disseminated mineralization. Disseminated sulfides and native copper with stockwork
malachite and chrysocolla are present at the surface, and chalcopyrite, pyrite, minor bornite, primary chalcocite, pyrrhotite,
and native copper are present at depth. Gold occurs as free gold.
Estimated Resources from the Technical
Report dated June 20, 2012
The Copper King resource
contains oxide, mixed oxide-sulfide and sulfide rock types. At the stated cutoff grade 0.015oz AuEq/ton, approximately 80% of the
resource is sulfide material with the remaining 20% split evenly between the oxide and mixed rock types. There is consistent distribution
of gold and copper, albeit generally low-grade, throughout this potential open-pit deposit.
Table 1.1 Summary Tables of Copper King
Resources
(1)
Total Measured and Indicated Resource:
Au
-
equiv. Cutoff
|
tons
|
tonnes
|
oz Au/ton
|
g Au/t
|
oz Au
|
% Cu
|
lbs Cu
|
oz AuEq/ton
|
g AuEq/t
|
0.015
|
0.51
|
59,750,000
|
54,200,000
|
0.015
|
0.53
|
926,000
|
0.187
|
223,000,000
|
Total Inferred Resource:
Au
-
equiv. Cutoff
|
tons
|
tonnes
|
oz Au/ton
|
g Au/t
|
oz Au
|
% Cu
|
lbs Cu
|
oz AuEq/ton
|
g AuEq/t
|
0.015
|
0.51
|
15,620,000
|
14,170,000
|
0.011
|
0.38
|
174,000
|
0.200
|
62,530,000
|
Using the individual metal grades of each
block, the AuEq grade is calculated using the following formula:
g AuEq/t = g Au/t +
(2.057143 * %Cu)
This formula is based on prices of $1,100 USD per ounce gold and $3.00 USD
per pound copper.
(1)
Technical Report on the Copper King Project Laramie County,
Wyoming, Effective Date June 20, 2012, prepared for Strathmore Minerals Corp. by Mine Development Associates, authors Paul Tietz
and Neil Prenn.
Keystone
Project
On May 27, 2016, USG entered into
a Purchase and Sale Agreement with Nevada Gold and Americas Gold Exploration, Inc. pursuant to which USG acquired the Keystone
Project. Certain Keystone claims are subject to pre-existing net smelter royalty (“NSR”) obligations. Moreover, pursuant
to the terms of the agreement, Nevada Gold NSR rights of 0.5% with regard to certain claims and 3.5% with regard to certain other
claims. Pursuant to the terms of the Purchase and Sale Agreement, USG may buy down 1% of the NRS payable to Nevada Gold at any
time through the fifth anniversary of the closing date for $2,000,000. In addition, USG may buy down an additional 1% of the NRS
payable to Nevada Gold anytime through the eighth anniversary of the closing date for $5,000,000.
The Keystone Project currently consists of three hundred
seventy seven (377) unpatented lode mining claims situated in Eureka County, Nevada. The claims making up the Keystone Project
are situated in Eureka County, Nevada in Sections 2-4 and 9-11, Township 23 North, Range 48 East, and Sections 22-28, and 33-36
Township 24 North, all Range 48 East of the Mount Diablo Meridian.
The Keystone Project consists of
unpatented mining claims located on federal land administered by the U.S. Bureau of Land Management. An annual maintenance fee
of $155 per claim per year must be paid to the Nevada Bureau of Land Management by September 1 of each year, and failure to pay
the annual maintenance fee on time will render USG’s claims void. In addition, the State of Nevada requires USG to file an
Affidavit and Notice of Intent to Hold in Eureka County by November 1 of each year.
The three hundred seventy seven
(377) unpatented mining claims comprising the Keystone Project, with applicable NSR obligations, are as follows:
|
1.
|
Acquired 100% from Americas Gold subject to (i) a 1% NRS held by Wolfpack Gold Nevada Corp.; (ii)
a 2% NRS with respect to precious metals; (iii) a 1% NSR with respect to all other metals and minerals held by Orion Royalty Company,
LLC; and (iv) a 0.5% NSR to Nevada Gold.
|
27 unpatented lode mining claims situated in Eureka
County, Nevada, in Sections 33 and 34, Township 24 North, Range 48 East, and Sections 3, 4, 9, and 10, Township 23 North, Range
48 East, Mount Diablo Base Line and Meridian.
Claim Name
|
No. claims
|
BLM NMC Serial Number
|
UNR 5-8
|
4
|
861839-861842
|
UNR 9-18
|
10
|
858729-858738
|
UNR 19-22
|
4
|
875010-875013
|
UNR 37
|
1
|
861857
|
UNR 39
|
1
|
861859
|
UNR 41
|
1
|
861861
|
UNR 43
|
1
|
861863
|
UNR 45
|
1
|
861865
|
UNR 47
|
1
|
861867
|
UNR 79
|
1
|
875020
|
UNR 81
|
1
|
875022
|
UNR 83
|
1
|
875024
|
Total Claims
|
27
|
|
2.
|
Acquired 100% from Americas Gold subject to a 3.5% NSR to Nevada Gold
|
13 unpatented lode mining claims situated in Eureka
County, Nevada, in Sections 27, 28 and 35, Township 24 North, Range 48 East, and Sections 2 and 3, Township 23 North, Range 48
East, Mount Diablo Base Line and Meridian.
Claim Name
|
No. claims
|
BLM NMC Serial Number
|
UNR 73-77
|
5
|
1102663-110266
|
UNR 117
|
1
|
1102668
|
UNR 119
|
1
|
1102669
|
UNR 121
|
1
|
1102670
|
DON 1-5
|
5
|
1102658-1102662
|
Total Claims
|
13
|
|
3.
|
Acquired 100% from Nevada Gold subject to a 3.% NSR to Nevada Gold
|
28 unpatented lode mining claims situated in Eureka
County, Nevada, in Sections 2 & 11, Township 23 North, Range 48 East, Mount Diablo Base Line and Meridian.
Claim Name
|
No. claims
|
BLM NMC Serial Number
|
SK 1-28
|
28
|
865573-865600
|
Total Claims
|
28
|
|
4.
|
Acquired 50% from Nevada Gold and 50% from Americas Gold subject to a 3.5% NSR to Nevada Gold
|
216 unpatented lode mining claims, alphabetically ordered,
situated in Eureka County, Nevada, in Sections 22, 23, 24, 25, 26, 27, 28, 33, 34, 35 & 36, Township 24 North, Range 48 East,
Mount Diablo Base Line and Meridian.
Claim Name
|
No. claims
|
BLM NMC Serial Numbers
|
AU 1-12
|
12
|
1116231-1116242
|
AU 68-93
|
26
|
1116243-1116268
|
CHS 54-72
|
19
|
1116269-1116287
|
CHS 74
|
1
|
1116288
|
CHS 76-120
|
45
|
1116289-1116333
|
CHS 121-130
|
10
|
1118512-1118521
|
CHS 265-266
|
2
|
1116334-1116335
|
KEY 9-30
|
22
|
1116336-1116357
|
KEY 32
|
1
|
1116358
|
KEY 34
|
1
|
1116359
|
KEY 36
|
1
|
1116360
|
KEY 45-72
|
28
|
1116361-1116388
|
KEY #73 - #78
|
6
|
1118480-1118485
|
KP #4 - #8
|
5
|
1118496-1118500
|
KP 9-14
|
6
|
1116389-1116394
|
KP 18-19
|
2
|
1116395-1116396
|
KP 21
|
1
|
1116397
|
KP 23-29
|
7
|
1116398-1116404
|
KP #30 - #39
|
10
|
1118486-1118495
|
UNR 25-35
|
11
|
1118501-1118511
|
Total Claims
|
216
|
|
5.
|
Acquired 71 additional unpatented lode mining claims for the Keystone Project, located in North
Central Nevada, on the Cortez Trend situated in Eureka County, Nevada.
|
Claim Name
|
No. claims
|
BLM NMC Serial Numbers
|
KEY #79
|
1
|
NMC1129499
|
KEY #80
|
2
|
NMC1129500
|
KEY #81
|
3
|
NMC1129501
|
KEY #82
|
4
|
NMC1129502
|
KEY #83
|
5
|
NMC1129503
|
KEY #84
|
6
|
NMC1129504
|
KEY #85
|
7
|
NMC1129505
|
KEY #86
|
8
|
NMC1129506
|
KEY #87
|
9
|
NMC1129507
|
KEY #88
|
10
|
NMC1129508
|
KEY #89
|
11
|
NMC1129509
|
KEY #90
|
12
|
NMC1129510
|
KEY #91
|
13
|
NMC1129511
|
KEY #92
|
14
|
NMC1129512
|
KEY #93
|
15
|
NMC1129513
|
KEY #94
|
16
|
NMC1129514
|
KEY #95
|
17
|
NMC1129515
|
KEY #96
|
18
|
NMC1129516
|
KEY #97
|
19
|
NMC1129517
|
KEY #98
|
20
|
NMC1129518
|
KEY #99
|
21
|
NMC1129519
|
KEY #100
|
22
|
NMC1129520
|
KEY #101
|
23
|
NMC1129521
|
KEY #102
|
24
|
NMC1129522
|
KP #2
|
25
|
NMC1129476
|
KP #3
|
26
|
NMC1129477
|
KP #15
|
27
|
NMC1129478
|
KP #16
|
28
|
NMC1129479
|
KP #17
|
29
|
NMC1129480
|
KP #20
|
30
|
NMC1129481
|
KP #22
|
31
|
NMC1129482
|
KP #40
|
32
|
NMC1129483
|
KP #41
|
33
|
NMC1129484
|
KP #42
|
34
|
NMC1129485
|
KP #43
|
35
|
NMC1129486
|
KP #44
|
36
|
NMC1129487
|
KP #45
|
37
|
NMC1129488
|
KP #46
|
38
|
NMC1129489
|
KP #47
|
39
|
NMC1129490
|
KP #48
|
40
|
NMC1129491
|
KP #55
|
41
|
NMC1129492
|
KP #56
|
42
|
NMC1129493
|
KP #57
|
43
|
NMC1129494
|
KP #58
|
44
|
NMC1129495
|
KP #59
|
45
|
NMC1129496
|
KP #60
|
46
|
NMC1129497
|
KP #61
|
47
|
NMC1129498
|
SK 29
|
48
|
NMC1129452
|
SK 30
|
49
|
NMC1129453
|
SK 31
|
50
|
NMC1129454
|
SK 32
|
51
|
NMC1129455
|
SK 33
|
52
|
NMC1129456
|
SK 34
|
53
|
NMC1129457
|
SK 35
|
54
|
NMC1129458
|
SK 36
|
55
|
NMC1129459
|
SK 37
|
56
|
NMC1129460
|
SK 38
|
57
|
NMC1129461
|
SK 39
|
58
|
NMC1129462
|
SK 40
|
59
|
NMC1129463
|
SK 41
|
60
|
NMC1129464
|
SK 42
|
61
|
NMC1129465
|
SK 43
|
62
|
NMC1129466
|
SK 44
|
63
|
NMC1129467
|
SK 45
|
64
|
NMC1129468
|
SK 46
|
65
|
NMC1129469
|
SK 47
|
66
|
NMC1129470
|
SK 48
|
67
|
NMC1129471
|
UNR 23
|
68
|
NMC1129472
|
UNR 24
|
69
|
NMC1129473
|
UNR 36
|
70
|
NMC1129474
|
UNR 38
|
71
|
NMC1129475
|
Total Claims
|
71
|
History of Prior Operations and Exploration on the
Keystone Project
No comprehensive, modern-era, model-driven
exploration has ever been conducted on the Keystone Project. Newmont drilled 6 holes in the old base metal and silver Keystone
mine area in 1967 and encountered low grade (+/- 0.02 opt) gold intercepts. Chevron staked the property in from 1981 to 1983 and
drilled 27 shallow drill holes, continued by an agreement with USMX Inc. (U.S. Mining and Exploration, Inc.) that drilled
an additional 19 shallow holes. Significant amounts of low grade and anomalous gold were intersected, but results were considered
uneconomic, and the project was terminated. In 1988 and 1989, Phelps Dodge acquired a southern portion of the district and drilled
6 holes, one of which TD’d (total depth of hole) in gold mineralization, and was subsequently deepened in 1990 resulting
in over 200’ of low grade gold mineralization. About this time Coral Resources acquired a northern portion of the property
and drilled 21 shallow holes to follow-up previous drill intercepts. From 1995 to 1997, Golden Glacier, a junior company, acquired
the north end of the district, and Uranerz acquired a portion of the southern area. Six holes were drilled in the north and only
2 holes in the south. Drilling in the entire district was terminated by both parties.
In 2004 with the discovery of Cortez
Hills and escalating gold prices, Nevada Pacific Gold, Great American Minerals, and Tone Resources competed in claim staking the
entire district. Subsequently, Don McDowell, founder of Great American Minerals approached Placer Dome (prior to Barrick acquisition)
who discovered Pipeline and Cortez Hills, and who correctly recognized the Keystone district potential. Placer Dome entered into
separate joint venture agreements with Nevada Pacific and Great American. The following year Barrick Gold acquired Placer Dome
and terminated all of Placer Dome's Nevada exploration projects and joint ventures, including Keystone. In 2006, Nevada Pacific
and Tone were purchased by US Gold. US Gold, now McEwen Mining, drilled 35 holes mostly near the north end of the district targeting
the range front pediment and the historic Keystone Mine.
Geological Potential of the Keystone Project
To date, a technical report has
not been prepared on the Keystone Project. Keystone is positioned on the prolific Cortez gold trend, one of the world’s leading
gold producing regions. The Keystone Project is centered on a granitic intrusion that warped the local Paleozoic stratigraphy into
a dome, allowing for exposure of highly favorable Devonian, Carboniferous (Mississippian-Pennsylvania) and Permo-Triassic rocks
including key likely host rocks for mineralization, the silty carbonate strata of the Horse Creek Formation and the Wenban limestone,
as well as possible sandy clastic units of the Diamond Peak Formation. The Horse Canyon and Wenban rocks are the primary host rocks
at the nearby Cortez Hills Mine and Gold Rush deposit currently operated by Barrick Gold.
Employees
As of December 23, 2016, USG has
4 (four) full-time employees and is actively hiring to fill additional full-time positions as appropriate.
Properties
See section entitled “
USG’s
Business
”.
Legal Proceedings
USG is not currently a party
to any material legal proceedings.
DATARAM MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Overview
Dataram Corporation is incorporated in the State of Nevada and the Company’s common stock is traded on The NASDAQ
Capital Market under the symbol "DRAM."
On July 6, 2016,
the Company filed a certificate of amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada
in order to effectuate a reverse stock split of the Company’s issued and outstanding common stock on a 1 for 3 basis. The
reverse stock split was effective on July 11, 2016. Except where otherwise indicated, all per share amounts reflect the reverse
stock split.
The Company's principal
executive office is located at 777 Alexander Road, Suite 100, Princeton, New Jersey, 08540, its telephone number is (609) 799-0071
and its website is located at http://www.dataram.com.
The Company is an independent manufacturer of memory products and provider of performance solutions. The Company
provides customized memory solutions for OEMs and compatible memory for leading brands including Cisco, Dell, Fujitsu, HP, IBM,
Lenovo and Oracle as well as a line of memory products for Intel and AMD motherboard based servers. Dataram manufactures
its memory in-house to meet three key criteria - quality, compatibility, and selection - and tests its memory for performance and
OEM compatibility as part of the production process. With memory designed for over 50,000 systems and with products that
range from energy-efficient DDR4 modules to legacy SDR offerings, Dataram offers one of the most complete portfolios in the industry. The
Company is ISO 9001 (2008 Certified). Its products are fully compliant with JEDEC Specifications.
The Company’s
customers include a global network of distributors, resellers, retailers, OEM customers and end users.
The Company competes
with several other large memory manufacturers and OEMs. The primary raw material used in producing memory boards is dynamic
random access memory (DRAM) chips. The purchase cost of DRAMs is the largest single component of the total cost of a finished memory
board. Consequently, average selling prices for computer memory boards are significantly dependent on the pricing and availability
of DRAM chips.
Proposed Acquisition of US Gold Corp
On June 13, 2016, the Company entered into an agreement to acquire U.S. Gold Corp. and subsidiaries. U.S.
Gold is an exploration stage company that owns certain mining leases and other mineral rights comprising the Copper King gold and
copper development project located in the Silver Crown Mining District of southeast Wyoming (the “Copper King Project”)
and mining claims related to a gold development project in Eureka County, Nevada (the “Keystone Project”).
The closing of the
transaction is subject to certain closing conditions, including shareholder approval and regulatory review. There is no assurance
that such conditions will be satisfied and approvals secured such that the transaction will be consummated.
Business Segments
Dataram has four
business lines which provide complementary solutions to the market. Each has a different customer focus and “go to
market” approach. They are:
|
·
|
Dataram / Princeton Memory
: provides memory products that support enterprise / mission
critical needs, custom and high end memory solutions, consulting services, software solutions, and asset management / buy-back
programs. Products are sold direct and through partners into the enterprise, government and embedded markets.
|
|
·
|
Micro Memory Bank (MMB)
: provides new and refurbished memory products which are not
commonly available and, in most cases, no longer available from the OEM. The business also provides brokerage and technology recycling
services.
|
|
·
|
MemoryStore.com
: the Memorystore.com web property provides “Dataram Value Memory”
products used in desktops, laptops, notebooks, servers, workstations, and MAC systems. Dataram Value Memory is specifically designed
and tested to meet industry standards and is compliant with JEDEC Specifications.
|
|
·
|
18004Memory.com
: the 18004Memory.com web property provides new and refurbished memory
products used in desktops, laptops, notebooks, servers, MAC systems, printers, digital cameras, and mobile devices. This includes
memory upgrades for all major brands including Compaq, Dell, Apple, Hewlett-Packard, Toshiba, IBM, Gateway, Sony, Fujitsu, and
Acer.
|
Liquidity and Capital Resources
As of October 31, 2016,
the Company had cash totaling approximately $63,000. Net cash provided by operating activities totaled approximately $291,000 for
the six months ended October 31, 2016. Net loss totaled approximately $1,186,000 which included approximately $429,000 of stock
based compensation expense. Trade receivables decreased by approximately $1,351,000 primarily the result of decreased revenues.
Accounts payable decreased by approximately $216,000. Other current assets increased by approximately $90,000 as a result of cost
associated with the proposed acquisition of US Gold Corp.
Net cash used in financing
activities for the six months ended October 31, 2016 totaled approximately $285,000. The Company’s repayments on its line
of credit totaled approximately $788,000. The Company issued Preferred Series B shares for cash proceeds of $503,000.
If
current and projected revenue growth does not meet estimates, the Company may need to raise additional capital through debt and/or
equity transactions and further reduce certain overhead costs. The Company may require up to $1,000,000 of additional working capital
over the next twelve months to support operations. The Company cannot provide assurance that it will obtain any required financing
or such financing will be available to it on favorable terms.
Based
on the above, there is substantial doubt about the Company’s ability to continue as a going concern. The condensed consolidated
financial statements do not include any adjustments relating to the recoverability and classification of recorded assets, or the
amounts of and classification of liabilities that might be necessary in the event the Company cannot continue in existence.
Future minimum lease payments
under non-cancelable operating leases (with initial or remaining lease terms in excess of one year) as of October 31, 2016 are
as follows:
|
|
Total
|
Year ending April 30:
|
|
|
|
2017
|
|
|
131,000
|
2018
|
|
|
173,000
|
2019
|
|
|
130,000
|
2020
|
|
|
86,000
|
Total
|
|
$
|
520,000
|
The Company has no other material commitments.
Results of Operations
Revenues for the three month period
ended October 31, 2016 were $4,679,000 compared to revenues of $6,051,000 for the three month period ended October 31, 2015. Revenues
for the first six months of the current fiscal year were $9,594,000 compared to revenues of $13,388,000 for the comparable prior
year period. The decline in revenues for the three and six months ended October 31, 2016 is primarily attributable to a decline
in average selling prices of approximately 36% from the comparable prior year periods.
Cost of sales for the three and
six months ended October 31, 2016 were $3,829,000 and $8,018,000, respectively versus $4,848,000 and $10,783,000, respectively
in the prior year comparable periods. Cost of sales as a percentage of revenues for the three and six months October 31, 2016 were
82% and 84%, respectively of revenues versus 80% and 81% of revenues for the same respective prior year periods. The decrease in
gross margin as a percent of sales is a result of the Company trying to protect market share in an environments of declining selling
prices.
Engineering expense in the three
and six months ended October 31, 2016 were approximately $42,000 and $98,000, respectively, which is comparable to $46,000 and
$100,000 for the same respective prior year periods.
Selling, general and administrative
(S,G&A) expense for the three and six month period ended October 31, 2016 totaled $1,025,000 and $2,584,000, respectively,
compared to $1,280,000 and $2,684,000 for the same prior year periods. The Company has reduced annualized S,G&A overhead cost
by approximately $1,000,000 in the prior twelve months. The decrease is the result of reduction in employees and other cost. The
Company recorded approximately $429,000 of stock based compensation charges in the current years fiscal first quarter ended July
31, 2016 compared to $213,000 in the comparable prior year period.
Other income (expense), net for
the three and six month period ended October 31, 2016 totaled approximately $43,000 and $84,000 of expense, respectively, compared
to expense of approximately $47,000 and $109,000, for the same prior year periods. Other expense in the three month period ended
October 2016 consisted of approximately 40,000 of interest expense and approximately $3,000 of foreign currency transaction losses.
Other expense for the six months ended October 31, 2016 consisted of interest expense of approximately $79,000 and approximately
$5,000 of foreign currency transaction losses. Other income (expense) in the three month period ended October 31, 2015 consisted
of approximately $54,000 of interest expense and approximately $7,000 of foreign currency transaction gains. For the six month
period ended October 31, 2015 other income (expense) consisted of approximately $116,000 of interest expense and approximately
$7,000 of foreign currency transaction gains.
In May 2015, Dataram filed an application
with the state of New Jersey (NJ) for the transfer of the NJ State tax benefit associated with its State of New Jersey specific
Net Operating Losses (NOLs). The Company executed a contract of sale and received proceeds of approximately $190,000 on December
9, 2015.
The following table sets forth
consolidated operating data expressed as a percentage of revenues for the periods indicated.
Years Ended April 30,
|
|
2016
|
|
2015
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
100.0
|
%
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
Cost of sales
|
|
81.3
|
|
|
85.2
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
18.7
|
|
|
14.8
|
|
|
|
|
|
|
|
|
|
|
Engineering
|
|
0.7
|
|
|
2.7
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative
|
|
22.9
|
|
|
21.8
|
|
|
|
|
|
|
|
|
|
|
Loss from operations
|
|
(4.9)
|
|
|
(9.7
|
)
|
|
|
|
|
|
|
|
|
|
Other income (expense), net
|
|
(0.7)
|
|
|
(3.8
|
)
|
|
|
|
|
|
|
|
|
|
Loss before income tax expense
|
|
(5.6)
|
|
|
(13.5
|
)
|
|
|
|
|
|
|
|
|
|
Gain on sale of state NOL, net of tax expense
|
|
0.7
|
|
|
0.0
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
(4.9)
|
%
|
|
(13.5
|
)%
|
|
Fiscal 2016 Compared With Fiscal 2015
Revenues for the fiscal
year ended April 30, 2016 were $25,182,000 compared to $28,258,000 in the fiscal year ended April 30, 2015, an 11% decrease. The
decline in revenues can be attributable to management’s decision to discontinue the consumer memory product line during fiscal
year 2015. The Company exited the product line in the third quarter ended January 31, 2015. The AMD consumer memory product line
was not profitable, did not align with the corporate strategy, and consumed valuable working capital. The Company shipped approximately
$1,900,000, in the prior year of the discontinued product line. The Company also reduced sales resources associated with marginally
profitable broker product line which resulted in approximately $1,500,000 decline in revenue.
Revenues for the fiscal years ended
April 30, 2016 and 2015 by geographic region were:
Fiscal
|
|
U.S.
|
|
|
Europe
|
|
|
Other*
|
|
|
Consolidated
|
|
2016
|
|
$
|
19,713,000
|
|
|
$
|
4,405,000
|
|
|
$
|
1,064,000
|
|
|
$
|
25,182,000
|
|
2015
|
|
$
|
23,285,000
|
|
|
$
|
3,785,000
|
|
|
$
|
1,188,000
|
|
|
$
|
28,258,000
|
|
*Principally Asia Pacific Region
The Company expects that the entire
backlog on hand will be filled during the fiscal year ending April 30, 2017 and mostly in the first quarter. The Company's backlog
at April 30, 2016 was $274,000. At April 30, 2015, the Company’s backlog was $98,000.
Cost of sales was $20,464,000 in
the fiscal year ended April 30, 2016 or 81% of revenues compared to $24,068,000 or 85% of revenues in the fiscal year ended April
30, 2015. The aforementioned shutdown of the unprofitable consumer memory product line and broker product line accounted for the
favorable reduction in cost of sales as percentage of sales. The Company has also reduced manufacturing overhead cost by approximately
$470,000 on an annualized basis. Most of the cost reductions were implemented in the first quarter of the current fiscal year.
Engineering expense in the fiscal
year ended April 30, 2016 was approximately $191,000 versus approximately $768,000 in the fiscal year ended April 30, 2015. The
engineering cost reduction was primarily the result of software development cost associated with a project that was suspended in
January 2015.
Selling, general and administrative
expenses were $5,766,000 in the fiscal year ended April 30, 2016 versus $6,171,000 in the fiscal year ended April 30, 2015. The
Company has reduced annualized S,G&A overhead cost by approximately $1,100,000. The decrease is the result of reduction in
employees and other cost. Stock-based compensation expense was recorded as a component of selling, general and administrative expense
and totaled approximately $746,000 in the fiscal year ended April 30, 2016, versus $14,000 in the fiscal year ended April 30, 2015.
Other income (expense) for the
fiscal year ended April 30, 2016 totaled approximately $168,000 of expense versus $1,077,000 of expense in fiscal 2015. Other income
(expense) for the fiscal year ended April 30, 2016 includes interest expense of approximately $200,000 on the Company’s revolving
bank credit line and approximately $9,000 of foreign currency transaction gains. Additionally, there was approximately $22,000
of debt extinguishment gain recorded. Other income (expense) for the fiscal year ended April 30, 2015 includes $1,001,000 of interest
expense and $76,000 of foreign currency transaction losses, primarily as a result of the US dollar strengthening against the EURO.
The interest expense recorded in fiscal year ended April 30, 2015 includes a non-cash interest charge of approximately $750,000
recorded for the amortization of debt discount as a result of the issuance of the subordinated convertible notes and interest expense
of approximately $251,000 on the Company’s revolving bank credit line.
The Company’s consolidated
statements of operations for the fiscal year ended April 30, 2016 include a gain recorded on the sale of state net operating losses
of approximately $190,000 and tax expense of approximately $3,000 that consists of state minimum tax payments. For the fiscal year
ended April 30, 2015 tax expense of approximately $3,000 that consists of state minimum tax payments.
The Company has Federal and State
net operating loss carry-forwards of approximately $30,400,000 and $7,900,000, respectively. These can be used to offset future
taxable income and expire between 2023 and 2036 for Federal tax purposes and 2016 and 2036 for state tax purposes.
Going Concern
The Company's
consolidated financial statements are prepared using the accrual method of accounting in accordance with accounting principles
generally accepted in the United States of America (“U.S. GAAP”) and have been prepared assuming that the Company will
continue as a going concern, which contemplates the realization of assets and the settlement of liabilities in the normal course
of business. For the fiscal years ended April 30, 2016 and 2015, the Company has incurred losses in the amounts of approximately
$1,221,000 and $3,829,000, respectively.
The Company
raised approximately $600,000 from financing activities in the fiscal year 2016. The Company also exchanged notes payable and accrued
interest payable of approximately $672,000 for equity in fiscal 2016. While the Company has made significant operational changes
during the year ended April 30, 2016 which has reduced its cash burn, there still remains substantial doubt about the Company’s
ability to continue as a going concern. The consolidated financial statements do not include any adjustments relating to the recoverability
and classification of recorded assets, or the amounts of and classification of liabilities that might be necessary in the event
the Company cannot continue in existence.
If current
and projected revenue growth does not meet estimates, the Company may need to raise additional capital through debt and/or equity
transactions and further reduce certain overhead costs. The Company may require up to $1,000,000 of working capital over the next
twelve months to support operations. The Company cannot provide assurance that financing will close or be available to it on favorable
terms.
Liquidity and Capital Resources
As of April 30, 2016, the Company
had cash totaling approximately $56,000. Net cash used in operating activities totaled approximately $489,000. Net loss in the
year totaled approximately $1,221,000 which included approximately $741,000 of stock based compensation expense. Depreciation and
amortization expense of approximately $131,000 was recorded. Inventory decreased by approximately $753,000. The decrease in inventories
was a management decision to reduce inventory levels and increase working capital. Trade receivable increased by approximately
$746,000, primarily the result of a shipments that occurred towards the end of year. Accrued liabilities decreased by approximately
$123,000 and accounts payable decreased by approximately $71,000.
Net cash provided by financing
activities totaled approximately $239,000 and consisted of proceeds of $500,000 from the sale of common shares and $100,000 from
the sale of Series A Preferred Stock. The Company’s borrowing on its line of credit decreased by approximately $333,000 and
the Company paid back approximately $28,000 of convertible notes.
Working Capital Requirements
Credit Facility
On November 6, 2013, the Company
entered into a financing agreement with Rosenthal & Rosenthal, Inc. to replace its existing loan agreement (the “Financing
Agreement”). The Financing Agreement provides for a revolving loan with a maximum borrowing capacity of $3,500,000. The loans
under the Financing Agreement mature on November 30, 2016 unless such Financing Agreement is either earlier terminated or renewed.
Loans outstanding under the Financing Agreement bear interest at a rate of the Prime Rate (as defined in the Financing Agreement)
plus 3.25% (the “Effective Rate”) or on Over-advances (as defined in the Financing Agreement), if any, at a rate of
the Effective Rate plus 3%. The Financing Agreement contains other financial and restrictive covenants, including, among others,
covenants limiting our ability to incur indebtedness, guarantee obligations, sell assets, make loans, enter into mergers and acquisition
transactions and declare or make dividends. Borrowings under the Financing Agreement are collateralized by substantially all the
assets of the Company. On April 29, 2014, the Company entered into an amendment to the Financing Agreement. The amendment provides
for advances against inventory balances based on prescribed formulas of raw materials and finished goods. The maximum borrowing
capacity remains at $3,500,000. Borrowings at April 30, 2016 totaled approximately $1,776,000 and there was no additional availability
on that date.
Sales of Securities
On July 15, 2014, the Company entered
into a Purchase Agreement governing the issuance of $750,000 aggregate principal amount of Bridge Notes and Bridge Warrants. The
Bridge Notes and Bridge Warrants were issued on July 15, 2014. The Company issued $600,000 aggregate principal amount of
the Bridge Notes to certain institutional investors and $150,000 aggregate principal amount of the Bridge Notes to certain members
of management. The Bridge Notes, the initial maturity date of which was October 15, 2014 (which was subject to a three-month extension
at the option of the holders), are convertible into shares of the Company’s common stock. The initial conversion price for
institutional investors is $7.50 per share (which was subsequently reduced; see below), and the initial conversion price for management
is equal to the closing price of the Company’s common stock on the closing date of the Purchase Agreement, $8.82. The Bridge
Notes are secured obligations of the Company and bear interest at a rate of 8% per year. The Bridge Warrants are exercisable for
five years after the closing date of the Purchase Agreement, or July 15, 2019. For each $1,000 of principal amount of Bridge Notes,
the holder received 1,200 Bridge Warrants, each exercisable for the purchase of one share of the Company’s common stock.
Each holder is entitled to exercise one-third of all Bridge Warrants received at an exercise price of $9.00, one-third of all Bridge
Warrants received at an exercise price of $10.50, and one-third of all Bridge Warrants received at an exercise price that is equal
to the closing price on the closing date of the Purchase Agreement, $8.82. Pursuant to the terms of the Purchase Agreement, the
Company has agreed to register the shares underlying the Bridge Notes and the Bridge Warrants.
On November 17, 2014 the Company
closed the sale of 600,000 shares of its Series A Preferred Stock, which resulted in the reduction of the conversion price of the
Bridge Notes held by the institutional investors to $6.00 from $7.50 to equal the conversion price of the Series A Preferred Stock.
The Company paid off approximately $42,500 of the Notes and received extensions from all Bridge Note holders except for one holder
of an $80,000 Bridge Note. On January 15, 2016 the Company entered into equity exchange transactions (see below) which resulted
in the retirement of the Bridge Notes and Bridge Warrants except for the one holder of an $80,000 Bridge Note.
On November 17, 2014, the Company
completed a private placement of 600,000 shares of its Series A Preferred Stock together with the Series A Warrants to purchase
shares of its common stock at a price of $5.00 per share, in accordance with the Series A Preferred Stock Purchase Agreement dated
October 20, 2014. The net proceeds to the Company from the sale of the Series A Preferred Stock and Series A Warrants, after deducting
the estimated offering expenses incurred by the Company were approximately $2,697,000.
On February 2, 2015, the Company
completed a private placement of 26,600 shares of its Series A Preferred Stock together with Series A Warrants to purchase and
an additional 22,167 shares at an exercise price of $7.50 per share, in accordance with the Purchase Agreement. The net proceeds
to the Company from the sale of the Series A Preferred Stock and Series A Warrant were approximately $133,000.
On February 2, 2015, the Company
issued and sold an aggregate of 61,000 restricted shares of its common stock at a price of $6.00 per share and five-year warrants
to purchase an additional 316,000 shares with an exercise price of $7.50 per share, of which 16,667 shares were purchased by David
A Moylan, the Company’s CEO. The net proceeds to the Company from the sale of the restricted common stock and warrants (exclusive
of any exercise thereof) were approximately $365,000.
In accordance with the Series A
Purchase Stock Purchase Agreement, on October 30, 2015, investors in the Series A Preferred Stock exercised a right to purchase
20,000 shares of Series A Preferred Stock and warrants; gross proceeds of the transaction was $100,000.
Equity Exchange transactions
On January 15, 2016, Dataram Corporation
entered into separate exchange agreements with holders of:
|
(i)
|
the Company’s outstanding shares of Series A Preferred Stock and Series A Warrants to purchase
shares of the Company’s Common Stock issued in connection with the Series A Stock originally issued on November 17, 2014,
February 2, 2015 and October 30, 2015, and
|
|
(ii)
|
the Company’s outstanding institutionally held subordinated secured convertible bridge notes
(the “Bridge Notes”) and warrants held by institutions and employee investors to purchase shares of Common Stock issued
in connection with the sale of the Bridge Notes on July 15, 2014 (the “Bridge Note Warrants”) pursuant to Subordinated
Secured Convertible Bridge Note and Warrant Purchase Agreements (the “Bridge Purchase Agreements”), and
|
|
(iii)
|
warrants to purchase Common Stock issued pursuant to the Company’s prospectus supplement
dated September 18, 2013 (the “Registered Warrants” and together with the Series A Preferred Stock, the Series A Warrants,
Bridge Notes and the Bridge Note Warrants, the “Exchange Securities”).
|
Pursuant to the Exchange Agreements,
the Holders exchanged the Exchange Securities for an aggregate of 335,684 shares of the Company’s newly designated Series
B Convertible Preferred Stock (the “Series B Preferred Stock”).
As noted in (i) above the Company
entered into an agreement with investors who held Series A Preferred Stock and Series A Warrants. The 523,300 outstanding Series
A Preferred Stock were exchanged for 214,465 shares of Series B Preferred Stock.
As noted in (ii) above the Company
entered into an agreement with the institutional bridge note holders and certain members of management who held warrants issued
with the above Convertible Notes Payable whereby the warrants would be exchanged for shares of Series B Preferred Stock. 255,000
of the outstanding warrants were exchanged for 19,125 shares of Series B Preferred Stock.
As noted in (iii) above the Company
entered into an agreement with investors who held warrants issued with the above Common Stock issue dated September 18, 2013. The
87,967 outstanding warrants were exchanged for 6,598 shares of Series B Preferred Stock.
As contemplated by the Exchange
Agreements and as approved by the Company’s Board of Directors on January 21, 2016, the Company filed with the Secretary
of State of the State of Nevada, a Certificate of Designation of Preferences, Rights and Limitations of 0% Series B Convertible
Preferred Stock (the “Series B Certificate of Designations”). Pursuant to the Series B Certificate of Designations,
the Company designated 400,000 shares of its blank check preferred stock as Series B Preferred Stock. Each share of Series B Preferred
Stock has a stated value of $12.20 per share. In the event of a liquidation, dissolution or winding up of the Company, each share
of Series B Preferred Stock will be entitled to a per share preferential payment equal to the par value. All shares of capital
stock of the Company will be junior in rank to Series B Preferred Stock with respect to the preferences as to dividends, distributions
and payments upon the liquidation, dissolution and winding-up of the Company. The Holders will be entitled to receive dividends
if and when declared by the Company’s Board of Directors. In addition, the Series B Preferred Stock shall participate on
an “as converted” basis, with all dividends declared on the common stock.
Contractual Obligations
Future minimum lease payments under
non-cancelable operating leases (with initial or remaining lease terms in excess of one year) as of April 30, 2016 are as follows:
|
|
Non-Related
|
|
|
Related
|
|
|
|
|
|
|
Party
|
|
|
Party
|
|
|
Total
|
|
Year ending April 30:
|
|
|
|
|
|
|
|
|
|
|
|
|
2017
|
|
$
|
162,000
|
|
|
$
|
90,000
|
|
|
$
|
252,000
|
|
2018
|
|
|
84,000
|
|
|
|
90,000
|
|
|
|
174,000
|
|
2019
|
|
|
85,000
|
|
|
|
45,000
|
|
|
|
130,000
|
|
2020
|
|
|
86,000
|
|
|
|
—
|
|
|
|
86,000
|
|
Thereafter
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
417,000
|
|
|
$
|
225,000
|
|
|
$
|
642,000
|
|
Purchases
At April 30, 2016, the Company
had open purchase orders outstanding totaling $270,000, primarily for inventory items to be delivered in the first three months
of the fiscal year ending April 30, 2017. These purchase orders are cancelable
.
Off-Balance Sheet Arrangements
We do not have, and do not have
any present plans to implement, any off-balance sheet arrangements.
Recently Issued Accounting Pronouncements
See Notes to Consolidated Financial
Statements
Critical Accounting Policies
During December 2001, the Securities
and Exchange Commission (“SEC”) published a Commission Statement in the form of Financial Reporting Release No. 60
which encouraged that all registrants discuss their most “critical accounting policies” in management’s discussion
and analysis of financial condition and results of operations. The SEC has defined critical accounting policies as those that are
both important to the portrayal of a company’s financial condition and results, and that require management’s most
difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are
inherently uncertain. While the Company’s significant accounting policies are summarized in Note 3 of notes to consolidated
financial statements included in this Annual Report, management believes the following accounting policies to be critical:
Revenue Recognition - Revenue is
recognized when title passes upon shipment of goods to customers. The Company’s revenue earning activities involve delivering
or producing goods. The following criteria are met before revenue is recognized: persuasive evidence of an arrangement exists,
shipment has occurred, selling price is fixed or determinable and collection is reasonably assured. The Company does experience
a minimal level of sales returns and allowances for which the Company accrues a reserve at the time of sale in accordance with
the Revenue Recognition – Right of Return Topic of the FASB ASC. Estimated warranty costs are accrued by management upon
product shipment based on an estimate of future warranty claims.
Research and Development - Research
and development costs are expensed as incurred, including Company-sponsored research and development and costs of patents and other
intellectual property that have no alternative future use when acquired and in which we had an uncertainty in receiving future
economic benefits. Development costs of a computer software product to be sold, leased, or otherwise marketed are subject to capitalization
beginning when a product’s technological feasibility has been established and ending when a product is available for general
release to customers. Technological feasibility of a computer software product is established when all planning, designing, coding
and testing activities that are necessary to establish that the product can be produced to meet its design specifications (including
functions, features and technical performance requirements) are completed.
Income Taxes - The Company utilizes
the asset and liability method of accounting for income taxes in accordance with the provisions of the Expenses – Income
Taxes Topic of the FASB ASC. Under the asset and liability method, deferred income tax assets and liabilities are recognized for
the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing
assets and liabilities and their respective tax bases. A valuation allowance is provided when it is more likely than not that some
portion or all of the deferred income tax assets will not be realized. The Company considers certain tax planning strategies in
its assessment as to the recoverability of its tax assets. Deferred income tax assets and liabilities are measured using enacted
tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. The effect on deferred
income tax assets and liabilities of a change in tax rates is recognized in earnings in the period that the tax rate changes. The
Company recognizes, in its consolidated financial statements, the impact of a tax position, if that position is more likely than
not to be sustained on audit, based on technical merits of the position. There are no material unrecognized tax positions in the
financial statements.
Goodwill – The carrying value
of goodwill is not amortized, but is tested annually as of March 31 as well as whenever events or changes in circumstances indicate
that the carrying amount may not be recoverable using a two-step process. As of April 30, 2016, management has concluded that no
impairment of goodwill is required.
Use of Estimates - The preparation
of financial statements in conformity with accounting principles generally accepted in the United States of America requires management
to make estimates and assumptions that affect the reported amounts of assets and liabilities, including deferred income tax asset
valuation allowances and certain other reserves and disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the reporting period. Estimates and assumptions are reviewed
periodically and the effects of revisions are reflected in the consolidated financial statements in the period they are determined
to be necessary. Some of the more significant estimates made by management include the allowance for doubtful accounts and sales
returns, the deferred income tax asset valuation allowance and other operating allowances and accruals. Actual results could differ
from those estimates.
CHANGES AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
On November 2, 2015, the Company
dismissed Anton & Chia, LLP (A&C”) as the it’s independent registered public accounting firm effective on such
date. The dismissal was approved by the Company’s Board of Directors. The report of A&C on the Company’s financial
statements as of and for the fiscal years ended April 30, 2015 and 2014 did not contain an adverse opinion or a disclaimer of opinion
and were not qualified or modified as to uncertainty, audit scope or accounting principles, but included an explanatory paragraph
relating to the Company’s ability to continue as a going concern.
During the
fiscal years ended April 30, 2015 and 2014, and the subsequent interim periods through November 2, 2015, the date of dismissal,
there were (i) no disagreements between A&C and the Company upon any matter of accounting principles or practices, financial
statement disclosures, or auditing scope or procedure, any of which, if not resolved to A&C’s satisfaction, would have
caused A&C to make reference thereto in its reports, and (ii) no “reportable events” within the meaning of Item
304(a)(1)(v) of Regulation S-K.
The Company engaged Marcum LLP
(“Marcum”) as it’s new principal accountant as of November 2, 2015. The decision to change accountants was recommended
and approved by the Company’s Audit Committee following the Committee’s further process to determine it’s independent
registered public accounting firm.
During the fiscal years ended April
30, 2015 and 2014, and the subsequent interim periods through November 2, 2015, neither the Company nor anyone on the Company’s
behalf consulted with Marcum regarding (i) the application of accounting principles to a specific transaction, either completed
or proposed, (ii) the type of audit opinion that might be rendered on the Company’s financial statements. (iii) written or
oral advice provided that would be an important factor considered by the Company in reaching a decision as to an accounting, auditing
or financial reporting issue, (iv) any matter that was the subject of a “disagreement” within the meaning of Item 304(a)(1)(iv)
of Regulation S-K, or (v) any “reportable event” within the meaning of Item 304(a)(1)(v) of Regulation S-K.
QUANTITATIVE AND QUALITATIVE
DISCLOSURES ABOUT MARKET RISK
The Company does not invest in
market risk sensitive instruments. At times, the Company's cash equivalents consist of overnight deposits with banks and money
market accounts. The Company's objective in connection with its investment strategy is to maintain the security of its cash reserves
without taking market risk with principal.
The Company purchases and sells
primarily in U.S. dollars. The Company sells in foreign currency (primarily Euros) to a limited number of customers and as such
incurs some foreign currency risk. At any given time, approximately 5% to 40% of the Company’s accounts receivable are denominated
in currencies other than U.S. dollars. At present, the Company does not purchase forward contracts as hedging instruments, but
could do so as circumstances warrant
USG MANAGEMENT’S
DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following
discussion and analysis of USG’S financial condition and results of operations together with “Selected Historical and
Unaudited Pro Forma Condensed Combined Financial Data—Selected Historical Financial Data of USG” and USG’s financial
statements and the related notes included elsewhere in this proxy statement/prospectus. In addition to historical information,
this discussion and analysis contains forward-looking statements that involve risks, uncertainties and assumptions. USG’s
actual results may differ materially from those results described in or implied by the forward-looking statements discussed below.
Factors that could cause or contribute to such differences include, but are not limited to, those identified below, and those discussed
in the section titled “Risk Factors” included elsewhere in this proxy statement/prospectus.
Overview
U.S. Gold Corp. is an exploration
stage company that owns certain mining leases and other mineral rights. On July 2, 2014, USG entered into an asset purchase agreement
with Wyoming Gold Mining Company, Inc. for the purchase of the Copper King gold and copper development project located in the Silver
Crown Mining district of southwest Wyoming. On May 27, 2016, USG acquired certain unpatented mining claims related to a gold development
project in Eureka County, Nevada from Nevada Gold Ventures, LLC and Americas Gold Exploration, Inc. Subsequent to this acquisition,
USG acquired 71 additional unpatented lode mining claims.
Copper
King Project
The Copper King Project is located
in southeastern Wyoming. USG’s rights to the Copper King Project are derived from two mineral leases from the State of Wyoming.
Ownership of the mineral rights remains in the possession of the State of Wyoming as conveyed to the state by the United States.
The State of Wyoming issued the mineral leases to Wyoming Gold in 2013 and 2014 and Wyoming Gold assigned both leases to USG on
June 23, 2014. Limited exploration and mining were conducted on the Copper King property in the late 1880s and early 1900s. Since
1938, at least nine historic (pre-Strathmore) drilling campaigns by at least seven companies and the U. S. Bureau of Mines have
been conducted at Copper King. Wyoming Gold conducted an exploration drill program in 2007 and 2008. The focus of Wyoming Gold’s
work was to confirm and potentially expand the mineralized body outlined in the previous drill campaigns, increase the geologic
and geochemical database leading to the creation of the current geologic model and resource estimate, and to provide material for
further metallurgical testing.
Keystone
Project
On May 25, 2016, USG entered into
a purchase and sale agreement (“Purchase and Sale Agreement”), as amended and restated, with Nevada Gold and Americas
Gold Exploration, Inc. pursuant to which USG acquired certain mining claims related to a gold development project in Nevada. At
the time of purchase, the Keystone Project consisted of 284 unpatented lode mining claims situated in Eureka County, Nevada. Subsequent
to the acquisition, USG acquired 71 additional unpatented lode mining claims. No comprehensive, modern-era, model-driven exploration
has ever been conducted on the Keystone Project. Previously, significant amounts of low grade (+/- 0.02 opt) and anomalous gold
were intersected, but results were considered uneconomic, and prior projects were terminated.
Recent Events
On June 13, 2016, USG, Dataram,
DAS and Copper King entered into an Agreement and Plan of Merger as amended and restated on July 29, 2016, pursuant to which, subject
to the satisfaction or waiver of the conditions set forth in the Merger Agreement, DAS will merge with and into USG, with USG becoming
the surviving corporation of the Merger and the wholly-owned subsidiary of the Company.
Subject
to the terms and conditions of the Merger Agreement, at the closing of the Merger, the Company will issue
(i) up to 45,880,820
shares of Common Stock of the Company (including shares of Common Stock issuable upon conversion of our newly designated Series
C Preferred Stock, (ii) options to purchase up to 925,833 shares of the Company’s Common Stock at an exercise price equal
to $0.90 per share and (iii) warrants to purchase up to 1,809,436 shares of the Company’s Common Stock to be issued to a
placement agent at an exercise price of $0.66 per share, as consideration for the acquisition of USG in accordance with Stock Market
Rules.
On November 28, 2016, USG, Dataram
Corporation, Dataram Acquisition Sub, Inc., and Copper King, LLC, a principal stockholder of the Company, amended and restated
that certain merger agreement between the parties dated as of June 13, 2016 which was amended and restated on July 29, 2016 amended
and restated on September 14, 2016.
The parties agreed to execute the
Third and Final Amended and Restated Merger Agreement in order to, among other things:
|
·
|
Increase the Merger Consideration
for USG’s holders of record, in the aggregate and on an “as converted” and fully diluted basis, to 48,616,089
shares of common stock and equivalents from 46,241,868 shares of common stock and equivalents. This includes:
|
|
·
|
Reducing the number of shares
issuable to holders of USG’s Series C Preferred Stock issued in connection with USG’s holders private placement to
18,094,362 from 18,181,817;
|
|
·
|
Increasing the maximum number
of warrants to purchase Dataram’s common stock issuable to the placement agent in the financing to 1,809,436 five-year cashless
warrants from 400,000 warrants;
|
|
·
|
Adding a provision to issue 925,833
five-year options which vest 1/24 each month over the 2 years from the original date of issue to the holders of options issued
in connection with the closing of the Keystone Acquisition;
|
|
·
|
Eliminate a covenant that certain
officers and directors of Dataram be issued an aggregate of 820,000 shares of restricted stock pursuant to a shareholder approved
equity incentive plan, subject to the execution of a two year lockup agreement; and
|
|
·
|
Revised the maximum number of
shares the Company shall have outstanding at the closing of the merger, on a fully diluted basis, to 4,945,181 shares of common
stock.
|
Immediately
following the Effective Time of the Merger, USG shareholders are expected to own approximately 90.8% of the outstanding capital
stock of the Company.
The consummation of the Merger
is subject to certain closing conditions, including, amongst other things, approval by the Company’s shareholders of the
Merger and the issuance of the Merger Consideration.
Series C Financing
Between
July 2016 and October 2016, USG entered into subscription agreements with
accredited investors pursuant to which USG sold
an aggregate of 5,428,304 shares of Series C Preferred Stock for a purchase price of $2.20 per share, respectively, for aggregate
gross proceeds of approximately $11.9 million (the “Series C Closing”). Subject to certain limitations, each share
of Series C Preferred Stock are convertible into 10 shares of USG’s common stock.
In connection with the Series
C Closing, USG paid a placement agent a total of approximately $1.5M ($1.2 million in commissions, equal to approximately 10%
of the gross proceeds received by USG from the sale of securities sold by the placement agent and $240k in expense reimbursement
representing approximately 2% of the gross in expenses), and also issued the placement agents warrants to purchase 1,809,436 shares
of common stock (equal to 10% of the number of shares of common stock sold in the offering (on an as-converted basis with respect
to any Series C Preferred Shares sold) by the placement agent. The cashless warrants issued to the placement agent terminate five
years from the date of issuance and are exercisable at a price equal to $0.66 per share and may be exercised on a cashless basis.
Results of Operations
Six Months Ended October 31, 2016 and 2015
Net Revenues
USG is an exploration stage company
with no operations, and we generated no revenues for the six months ended October 31, 2016 and 2015.
Operating Expenses
Total operating expenses for the
six months ended October 31, 2016 as compared to the six months ended October 31, 2015, were approximately $2,032,000 and $7,600,
respectively. The $2,024,000 increase in operating expenses for the six months ended October 31, 2016 is comprised of an increase
of $451,000 in compensation as a result of the employment of USG officers during the six months ended October 31, 2016, a $237,000
increase in exploration expenses on our mineral properties due to an increase in exploration activities during the current six
month period, an increase of $1,180,000 in professional fees primarily due to an increased legal, accounting and consulting fees
as a result of increase investor relations and business advisory services, and an increase of $156,000 in general and administrative
expenses primarily attributable to an increase in travel related expenses.
Total operating expenses for the
three months ended October 31, 2016 as compared to the three months ended October 31, 2015, were approximately $694,000 and $2,200,
respectively. The $692,000 increase in operating expenses for the three months ended October 31, 2016 is comprised of an increase
of $202,000 in compensation as a result of the employment of USG officers during the three months ended October 31, 2016, a $125,000
increase in exploration expenses on our mineral properties due to an increase in exploration activities during the current three
month period, an increase of $302,000 in professional fees primarily due to an increased legal, accounting and consulting fees
as a result of increase investor relations and business advisory services, and an increase of $63,000 in general and administrative
expenses primarily attributable to an increase in travel related expenses.
Loss from Operations
USG reported loss from operations
of approximately $2,032,000 and $7,600 for the six months ended October 31, 2016 and 2015, respectively. USG reported loss from
operations of approximately $694,000 and $2,200 for the three months ended October 31, 2016 and 2015, respectively. The increase
in operating loss was due primarily to the increase in operating expenses described above.
Other Expenses
Total other expense was approximately
$4,200 and $0 for the six months ended October 31, 2016 and 2015, respectively. The change in other expense is primarily attributable
to an increase in interest expense to a related party.
Net Loss
As a result of the operating expense
and other expense discussed above, we reported a net loss of approximately $2,037,000 for the six months ended October 31, 2016
as compared to a net loss of $7,600 for the six months ended October 31, 2015. As a result of the operating expense and other
expense discussed above, we reported a net loss of approximately $694,000 for the three months ended October 31, 2016 as compared
to a net loss of $2,200 for the three months ended October 31, 2015.
Year ended April 30, 2016 and Year ended April 30,
2015
Net Revenues
USG is an exploration stage company
with no operations, and we generated no revenues for the years ended April 30, 2016 and 2015.
Operating Expenses
Total operating expenses for the
year ended April 30, 2016 as compared to the year ended April 30, 2015, were approximately $407,000 and $14,000, respectively.
The $393,000 increase in operating expenses for the year ended April 30, 2016 is primarily attributable to an increase in compensation
expenses of $260,000 primarily related to stock based compensation to our CEO, increased professional fees of $80,600 related to
legal expenses and increase general and administrative expenses of $51,000 primarily attributable to an increase in travel related
expenses.
Loss from Operations
USG reported loss from operations
of approximately $407,000 and $14,000 for the year ended April 30, 2016 and 2015, respectively. The increase in operating loss
was due primarily to the increase in operating expenses described above.
Net Loss
As a result of the operating expense
and other expense discussed above, we reported a net loss of approximately $407,000 for the year ended April 30, 2016 as compared
to a net loss of $14,000 for the year ended April 30, 2015.
Liquidity and Capital Resources
As reflected in the accompanying
financial statements, the Company had a net loss and net cash used in operations of approximately $2,036,000 and approximately
$1,473,000, respectively, for the six months ended October 31, 2016. Additionally, the Company had an accumulated deficit
of approximately $2,458,000 at October 31, 2016. In addition, the Company will need to raise capital in order to execute its business
plan. These factors raise substantial doubt about the Company’s ability to continue as a going concern. The ability to continue
as a going concern is dependent upon the Company generating profitable operations in the future and/or to obtain the necessary
financing to meet its obligations and repay its liabilities arising from normal business operations when they come due. The Company’s
ability to raise additional capital through the future issuances of common stock is unknown. The obtainment of additional financing,
the successful development of the Company’s contemplated plan of operations, and its transition, ultimately, to the attainment
of profitable operations are necessary for the Company to continue operations. Uncertainty regarding these matters, raises substantial
doubt about the Company’s ability to continue as a going concern. The financial statements do not include any
adjustments that might be necessary if the Company is unable to continue as a going concern. While the Company believes in
the viability of its strategy to generate revenues, there can be no assurances to that effect.
As of October 31, 2016, USG had
cash totaling approximately $9,001,000. Net cash used in operating activities totaled approximately $1,473,000 and $15,000 for
the six months ended October 31, 2016 and 2015, respectively. Net loss for the six months ended October 31, 2016 and 2015 totaled
approximately $2,036,000 and $7,600. Stock based compensation expense for the six months ended October 31, 2016 was approximately
$838,000. Prepaid expenses and reclamation bond deposit increased by approximately $239,000 and $17,000, respectively. Total accounts
payable and accrued liabilities from unrelated and related parties decreased by approximately $18,000 during the six months ended
October 31, 2016.
Net cash used in investing activities
totaled approximately $289,000 which is primarily attributable to the acquisition of mineral rights related to the Keystone Project
during the six months ended October 31, 2016.
Net cash provided by financing
activities totaled approximately $10,457,000 and $10,000 for the six months ended October 31, 2016 and 2015, respectively. During
the six months ended October 31, 2016, financing activities consisted of net proceeds of 10,866,000 from the sale of preferred
shares and $285,000 from the payment of note payable to a related party. During the six months ended October 31, 2015, financing
activities was primarily attributable to shareholder’s capital contribution of approximately $10,000.
As of April 30, 2016, USG had cash
totaling approximately $306,000. Net cash used in operating activities totaled approximately $34,000 and $17,000 for the year ended
April 30, 2016 and 2015, respectively. Net loss for the year ended April 30, 2016and 2015 totaled approximately $407,000 and $14,000.
Total prepaid expenses, and accounts payable and accrued liabilities, increased by approximately $ 12,000 and $136,000, respectively.
Net cash used in investing activities
totaled approximately $0 and $1,592,000 for the year ended April 30, 2016 and 2015, respectively. During the year ended April 30,
2015, investing activity is primarily attributable to the acquisition of mineral rights related to the Copper King Project.
Net cash provided by financing
activities totaled approximately $297,000 and $1,651,000 for the year ended April 30, 2016 and 2015, respectively. During the year
ended April 30, 2016, financing activities consisted of shareholder’s capital contribution of approximately $12,000 and $285,000
of proceeds received from issuance of a note payable – related party. During the year ended April 30, 2015, financing activities
consisted of net proceeds of $1,525,000 from the sale of common stock to a related party, $124,000 advances from a related party
and shareholder’s capital contribution of approximately $2,000.
Off-Balance Sheet Arrangements
The Company does not have, and
do not have any present plans to implement, any off-balance sheet arrangements.
Recently Issued Accounting Pronouncements
See Notes to Audited Financial
Statements (Note 2), which is included elsewhere in this Proxy Statement/ Prospectus.
Critical Accounting Policies
The discussion and analysis of
our financial condition and results of operations are based upon our financial statements, which have been prepared in accordance
with U.S. generally accepted accounting principles. The preparation of our financial statements requires us to make estimates and
judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent
assets and liabilities. On an on-going basis, we evaluate our estimates based on historical experience and on various other assumptions
that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the
carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these
estimates under different assumptions or conditions.
Management believes the following
critical accounting policies affect the significant judgments and estimates used in the preparation of the financial statements.
Use of Estimates and Assumptions
In preparing the consolidated financial
statements, management is required to make estimates and assumptions that affect the reported amounts of assets and liabilities
as of the date of the balance sheet, and revenues and expenses for the period then ended. Actual results may differ significantly
from those estimates. Significant estimates made by management include, but are not limited to valuation of mineral rights, stock-based
compensation, the fair value of common stock issued and the valuation of deferred tax assets and liabilities.
Stock-Based Compensation
Stock-based compensation is accounted
for based on the requirements of the Share-Based Payment Topic of ASC 718 which requires recognition in the financial statements
of the cost of employee and director services received in exchange for an award of equity instruments over the period the employee
or director is required to perform the services in exchange for the award (presumptively, the vesting period). ASC 718 also requires
measurement of the cost of employee and director services received in exchange for an award based on the grant-date fair value
of the award. Pursuant to ASC Topic 505-50, for share-based payments to consultants and other third-parties, compensation expense
is determined at the “measurement date.” The expense is recognized over the vesting period of the award. Until the
measurement date is reached, the total amount of compensation expense remains uncertain.
Mineral Rights
Costs of lease, exploration, carrying
and retaining unproven mineral lease properties are expensed as incurred. The Company expenses all mineral exploration costs as
incurred as it is still in the exploration stage. If the Company identifies proven and probable reserves in its investigation of
its properties and upon development of a plan for operating a mine, it would enter the development stage and capitalize future
costs until production is established.
When a property reaches the production
stage, the related capitalized costs are amortized on a units-of-production basis over the proven and probable reserves following
the commencement of production. The Company assesses the carrying costs of the capitalized mineral properties for impairment under
ASC 360-10, “Impairment of long-lived assets”, and evaluates its carrying value under ASC 930-360, “Extractive
Activities - Mining”, annually. An impairment is recognized when the sum of the expected undiscounted future cash flows
is less than the carrying amount of the mineral properties. Impairment losses, if any, are measured as the excess of the carrying
amount of the mineral properties over its estimated fair value.
ASC 930-805, “Extractive
Activities-Mining: Business Combinations” (“ASC 930-805”), states that mineral rights consist of the legal right
to explore, extract, and retain at least a portion of the benefits from mineral deposits. Mining assets include mineral rights.
Acquired mineral rights are considered tangible assets under ASC 930-805. ASC 930-805 requires that mineral rights be recognized
at fair value as of the acquisition date. As a result, the direct costs to acquire mineral rights are initially capitalized as
tangible assets. Mineral rights include costs associated with acquiring patented and unpatented mining claims.
CHANGES AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
None.
MANAGEMENT FOLLOWING THE
MERGER
Executive Officers and Directors
Executive Officers and Directors
of the Combined Company Following the Merger
The
Company’s Board of Directors is currently composed of four directors. Pursuant to the Merger Agreement, two directors of
the Company’s Board of Directors, as determined by the Company, USG and Copper King, shall resign at or prior to the consummation
of the Merger. In addition, USG shall appoint three designees to the Company’s Board of Directors, which appointment shall
be effective on the eleventh day following the date on which the Company meets its information obligations under the Exchange Act,
including the filing and mailing of a Schedule 14f-1. The three designees will meet the definition of “independent director”
as defined by The NASDAQ Stock Market LLC (or for any other exchange or trading system on which the Company’s securities
are subsequently listed), any other requirements of applicable laws and regulations, and any additional director independence standards
adopted by the Company.
The
following table lists the names and ages as of *, 2016 and positions of the individuals who are expected to serve as executive
officers and directors of the Company upon completion of the Merger:
Name
|
Age
|
Title
|
Director
/ Officer Since
|
Edward M. Karr
|
47
|
Chief Executive Officer, President and Director
|
2015
|
David A. Moylan
|
49
|
President: Dataram Division and Director
|
2014
|
David S. Rector
|
69
|
Chief Operating Officer and Corporate Secretary
|
2016
|
Timothy M Janke
|
64
|
Director
|
2016
|
James Dale Davidson
|
69
|
Director
|
-
|
John N. Braca
|
58
|
Director
|
-
|
Edward M. Karr
is an international
entrepreneur and founder of several investment management companies based in Geneva, Switzerland. He is a founder, President/CEO
and a Board member of U.S. Gold Corp. In addition, Mr. Karr is a Director of Pershing Gold, an emerging Nevada gold producer,
a Director and Chair of the Audit Committee of Dataram Corporation; and a Director and Chair of the Audit Committee of Levon Resources.
Mr. Karr previously served on the boards of Majesco Entertainment and Spherix. Mr. Karr is a board member and past President
of the American International Club of Geneva and Chairman of Republican’s Overseas Switzerland. Mr. Karr has more than 25
years of capital markets experience as an executive manager, financial analyst, money manager and investor. In 2004, Futures Magazine
named Mr. Karr as one of the world’s Top Traders. He is a frequent contributor the financial press. Mr. Karr previously worked
for Prudential Securities in the United States. Before his entry into the financial services arena, Mr. Karr was affiliated with
the United States Antarctic Program and spent thirteen consecutive months working in the Antarctic, receiving the Antarctic Service
Medal for winter over contributions of courage, sacrifice and devotion. Mr. Karr studied at Embry-Riddle Aeronautical University,
Lansdowne College in London, England and received a B.S. in Economics/Finance with Honours (magna cum laude) from Southern New
Hampshire University. Mr. Karr is qualified to serve on our Board because of his global operating and executive management experience;
deep knowledge of capital markets; experience in public company accounting, finance, and audit matters as well as his experience
in a range of board and committee functions as a member of various boards.
David A. Moylan
is President
and Chief Executive Officer of Dataram Corporation and Chairman of the Board. Mr. Moylan was previously a Partner at Yenni Capital,
Inc., a private equity firm from 2013 through 2015. Mr. Moylan was also a Managing Director with the Corporate Executive Board
(“CEB”), the world’s leading member-based advisory company, from 2010 to 2012. At CEB, Mr. Moylan held several
executive roles which addressed critical business challenges. As a General Manager, he led the three-way global integration of
Valtera with CLC Genesee and CEB’s core businesses across all functional areas. As President and CEO of Toolbox.com, he drove
the successful turnaround of the business, returning it to profitability and spearheaded its successful divestiture. From 2008
through 2010, Mr. Moylan served as Vice President and Division COO for the Global Client Development Division at LexisNexis where
he led operations and customer experience efforts and managed the Consulting and Training Services business. He also built a digital
agency that delivered on-line marketing solutions to more than 13,000 customers and generated more than $40 million in annual revenue.
In 2007, he was CEO of BK Global Ltd where he oversaw the growth of the business and its merger with another entity. From 2003
through 2007 he was an Executive Director at America Online (“AOL”) where he led numerous cross-functional efforts
that planned and delivered web and client-based technology products to consumers. Prior to AOL, Mr. Moylan was a consultant with
PricewaterhouseCoopers LLP and at A.T. Kearney, helping companies across multiple industries and continents grow their businesses
and transform their business models. He is a former U.S. Army officer who served with the 101st Airborne Division (Air Assault),
a graduate of the University of Vermont, and holds an MSIA (MBA) from Carnegie Mellon’s business school. Mr. Moylan
is qualified to serve on our Board because of his breadth of knowledge and experience in all aspects of the Company’s activities,
including products and services, customers, operations, strategic interests, sales and marketing efforts; his role currently as
the CEO at the Company; broad knowledge and operating experience in the technology and services industries; financial and operating
acumen; and expertise in evaluating growth and operational initiatives.
David S. Rector
has
been serving as the Chief Operating Officer and a member of the board of directors of USG since April 2016. In addition, he serves
as the Chief Executive Officer of Sevion Therapeutics, Inc. since January 2015 and as a member of the board of directors of Sevion
since February 2002. As of July 2015, Mr. Rector served as a director of Majesco Entertainment Company from July 2015 to December
2016 and as of May 2015, as a director of SciVac Therapeutics, Inc. Since 1985, Mr. Rector has been the Principal of The David
Stephen Group which provides enterprise consulting services to emerging and developing companies in a variety of industries. Mr.
Rector served as a director and member of the compensation and audit committee of the Dallas Gold and Silver Exchange Companies
Inc. (formerly Superior Galleries, Inc.) from May 2004 to September 2015. From January 2014 through January 2015, Mr. Rector served
on the board of directors of MV Portfolios, Inc. (formerly California Gold Corp.) From November 2012 through January 2014, Mr.
Rector served as the CEO and President of Valor Gold. From February 2012 through January 2013, Mr. Rector served as the VP Finance
& Administration of Pershing Gold Corp. From May 2011 through February 2012, Mr. Rector served as the President of Sagebrush
Gold, Ltd. From October 2009 through August 2011, Mr. Rector served as President and CEO of Li3 Energy, Inc. From July 2009 through
May 2011, Mr. Rector served as President and CEO of Nevada Gold Holdings, Inc. From September 2008 through November 2010, Mr. Rector
served as President and CEO Universal Gold Mining Corp. From October 2007 through February 2013, Mr. Rector served as President
and CEO of Standard Drilling, Inc. From May 2004 through December 2006, Mr. Rector served in senior management positions with
Nanoscience Technologies, Inc., a development stage company engaged in the development of DNA Nanotechnology. From 1983 until 1985,
Mr. Rector served as President and General Manager of Sunset Designs, Inc., a domestic and international manufacturer and marketer
of consumer product craft kits, and a wholly-owned subsidiary of Reckitt & Coleman N.A. From 1980 until 1983, Mr. Rector served
as the Director of Marketing of Sunset Designs. From 1971 until 1980, Mr. Rector served in progressive roles in the financial and
product marketing departments of Crown Zellerbach Corporation, a multi-billion dollar pulp and paper industry corporation. Mr.
Rector received a Bachelor of Science degree in Business/Finance from Murray State University in 1969.
Timothy M. Janke
has been
serving as a member of the board of directors of USG since April 2016. In addition, he has been serving as the Chief Operating
Officer of Pershing Gold Corp. since August 2014. Since November 2010, Mr. Janke has been the president of his own consulting business
providing mine operating and evaluation services to several mining companies. Beginning in July 2012, he provided consulting services
at the Relief Canyon Project advising the Company on mine start-up plans and related activities. From June 2010 to August 2014,
Mr. Janke served as Vice President and Chief Operating Officer of Renaissance Gold, Inc. and its predecessor Auex Ventures, Inc.
He was General Manager-Projects for Goldcorp Inc. and its predecessor Glamis Gold, Inc. from July 2009 to May 2010, Vice President
and General Manager of the Marigold Mine from February 2006 to June 2009, and its Manager of Technical Services from September
2004 to January 2006. Since August 2011, Mr. Janke has served as a director for Renaissance Gold. He is a past Director of both
the Nevada Mining Association, and Silverado Area Council Boy Scouts. He has a B.S. in Mining Engineering from the Mackay School
of Mines. Mr. Janke is qualified to serve on our Board because of his more than 40 years of engineering and operational experience
in the mining industry, and broad range of expertise in mining operations throughout the USA, Canada and Australia.
James Dale Davidson
has
been a member of S.A.C.S. OF Beaverton LLC since 2015, Founding Director of Vamos Holdings since 2012, Director of Solar Avenir
since 2016, Founding Director of Telometrix since 2016, and Founding Managing Member of Goldrock Resources, LLC since 2016. Mr.
Davidson first became active in the mining business after his forecast of the collapse of the Soviet Union was bore out. After
several small successes, Davidson teamed with Richard Moores in 1996 to launch Anatolia Minerals with an initial capital of $800,000.
At its peak, the company attained a market cap of $3.5 billion. Davidson, a graduate of Oxford University, has had a successful
career as a serial entrepreneur. He is the author of
Blood in the Streets: Investment Profits in a World Gone Mad, The Great
Reckoning: Protect Yourself in the Coming Depression
and
The Sovereign Individual (all with Lord William Rees-Mogg)
and
Brazil is the New America, The Age of Deception,
and
The Breaking Point.
Mr. Davidson qualified to serve on our Board
because of his experience in mining operations and corporate governance
John N. Braca
is
a financial executive and business partner with a strong track record in portfolio management, venture capital fundraising, as
well as financial and operational management. He has served as a director and board observer for life science, technology
and development companies over the course of his career. Mr. Braca has also served as an active member of both Audit and
Compensation Committees for both public and private companies and has led several of the public companies as the Chairman of the
Audit Committee. John N. Braca has been our director of Sevion Therapeutics since October 2003. Since April
2013, Mr. Braca has been the President and sole proprietor of JNB Consulting, which provides strategic business development counsel
to biotechnology companies. From August 2010 through April 2013, Mr. Braca had been the executive director controller for Iroko
Pharmaceuticals, a privately-held global pharmaceutical company based in Philadelphia. From April 2006 through July 2010, Mr. Braca
was the managing director of Fountainhead Venture Group, a healthcare information technology venture fund based in the Philadelphia
area, and has been working with both investors and developing companies to establish exit and business development opportunities.
From May 2005 through March 2006, Mr. Braca was also consultant and advisor to GlaxoSmithKline management in their research operations.
From 1997 to April 2005, Mr. Braca was a general partner and director of business investments for S.R. One, Limited,
or S.R. One, the venture capital subsidiary of GlaxoSmithKline. In addition, from January 2000 to July 2003, Mr. Braca was a general
partner of Euclid SR Partners Corporation, an independent venture capital partnership. Prior to joining S.R. One, Mr. Braca held
various finance and operating positions of increasing responsibility within several subsidiaries and business units of GlaxoSmithKline.
Mr. Braca is a licensed Certified Public Accountant in the state of Pennsylvania and is affiliated with the American Institute
of Certified Public Accountants and the Pennsylvania Institute of Certified Public Accountants. Mr. Braca received a Bachelor of
Science in Accounting from Villanova University and a Master of Business Administration in Marketing from Saint Joseph’s
University. Mr. Braca is qualified to serve on the Board because of his deep knowledge of financial and operational issues; extensive
experience in operational and executive management, deep governance acumen, and strong knowledge of early stage and public companies.
Family Relationships
There
are no family relationships among the executive officers and directors of the Company who are expected take office upon the
consummation of the Merger.
Legal Proceedings
Involvement in Certain
Legal Proceedings
During
the past ten years, none of our current directors, executive officers, promoters, control persons, or nominees has been:
|
·
|
the subject of any bankruptcy petition filed by
or against any business of which such person was a general partner or executive officer either at the time of the bankruptcy or
within two years prior to that time;
|
|
·
|
convicted in a criminal proceeding or is subject
to a pending criminal proceeding (excluding traffic violations and other minor offenses);
|
|
·
|
subject to any order, judgment, or decree, not
subsequently reversed, suspended or vacated, of any court of competent jurisdiction or any Federal or State authority, permanently
or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking
activities;
|
|
·
|
found by a court of competent jurisdiction (in
a civil action), the Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities
law.
|
|
·
|
the subject of, or a party to, any Federal or
State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating
to an alleged violation of (a) any Federal or State securities or commodities law or regulation; (b) any law or regulation respecting
financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement
or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (c) any
law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or
|
|
·
|
the subject of, or a party to, any sanction or
order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of
the Exchange Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7
U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members
or persons associated with a member.
|
Independence of Directors
The Company’s Board of Directors
is currently comprised of four members, three of whom are independent directors. Mr. Moylan is not an independent director in light
of his employment as CEO of the Company.
The Board, upon recommendation
of the Nominating and Corporate Governance Committee, unanimously determined that each of our three non-employee directors is “independent,”
as such term is defined in The NASDAQ Stock Market Rules.
The definition of “independent
director” included in the Stock Market Rules includes a series of objective tests, such as that the director is not an employee
of the Company, has not engaged in various types of specified business dealings with the Company, and does not have an affiliation
with an organization that has had specified business dealings with the Company. Consistent with the Company’s Corporate Governance
Principles, the Board’s determination of independence is made in accordance with the Stock Market Rules, as the Board has
not adopted supplemental independence standards. As required by the Stock Market Rules, the Board also has made a subjective determination
with respect to each director that such director has no material relationship with the Company (either directly or as a partner,
shareholder or officer of an organization that has a relationship with the Company), even if the director otherwise satisfies the
objective independence tests included in the definition of an “independent director” included in the Stock Market Rules.
In determining that each individual
who served as a member of the Board in FY 2016 (including our former directors, Jon Isaac and Richard Butler) is or was independent,
the Board considered that, in the ordinary course of business, transactions may occur between the Company and entities with which
some of our directors are affiliated. The Board unanimously determined that the relationships discussed below were not material.
No unusual discounts or terms were extended.
As part of its review, the Board
noted that Mr. Isaac was considered an “interested party” due to his “material investment” in the company.
While Mr. Isaac was considered an Independent Director, he was not eligible to sit on the Audit committee given his status of “interested
party”.
Based
upon information requested from and provided by each proposed director concerning their background, employment and affiliations,
including family relationships, Timothy Janke, James Dale Davidson, and John Braca have been determined to be independent
as defined under the
Stock Market Rules.
Compensation Committee Interlocks and Insider Participation
In fiscal year 2016 and through
the date of this proxy, the Compensation Committee consists of Mr. Davis, Mr. Karr, and Mr. Markulec. None of these directors has
served as one of the Dataram officers or employees at any time, and no Dataram named executive officer has served on the compensation
committee, or other body fulfilling that role, or any entity at which a member of the Company’s Compensation Committee served
as an executive officer.
Committees of the Board
The Company’s Board has and
will continue to have after the Merger three standing committees: Audit, Compensation, and Nominating and Corporate Governance.
Each of the committees is solely comprised of and chaired by independent directors, each of whom the Board has affirmatively determined
is independent pursuant to the Stock Market Rules. Each of the committees operates pursuant to its charter. The Committee Charters
are reviewed annually by the Nominating and Corporate Governance Committee. If appropriate, and in consultation with the chairs
of the other committees, the Nominating and Corporate Governance Committee proposes revisions to the charters. The responsibilities
of each committee are described in more detail below. The charters for the three committees are available on the Company’s
website at http//www.dataram.com/ by following the link to “Investor Relations” and then to “Corporate Governance.”
Audit Committee
The Audit Committee, among other
things, is responsible for:
|
·
|
appointing; approving the compensation of; overseeing
the work of; and assessing the independence, qualifications, and performance of the independent auditor;
|
|
·
|
reviewing the internal audit function, including
its independence, plans, and budget;
|
|
·
|
approving, in advance, audit and any permissible
non-audit services performed by our independent auditor;
|
|
·
|
reviewing our internal controls with the independent
auditor, the internal auditor, and management;
|
|
·
|
reviewing the adequacy of our accounting and financial
controls as reported by the independent auditor, the internal auditor, and management;
|
|
·
|
overseeing our financial compliance system; and
|
|
·
|
overseeing our major risk exposures regarding
the Company’s accounting and financial reporting policies, the activities of our internal audit function, and information
technology.
|
The
Audit Committee of the combined organization is expected to retain these duties and responsibilities following completion of the
Merger.
The Board has affirmatively determined
that each member of the Audit Committee meets the additional independence criteria applicable to audit committee members under
SEC rules and the Stock Market Rules. The Board of Directors has adopted a written charter setting forth the authority and responsibilities
of the Audit Committee. The Board has affirmatively determined that each member of the Audit Committee is financially literate,
and that all members meet the qualifications of an Audit Committee financial expert.
Beginning in June 2015, the Audit
Committee consisted of Mr. Karr, Mr. Davis, and Mr. Markulec. Mr. Karr has served as chair since joining in June 2015. Following
the consummation of the Merger, the members of the Audit Committee are expected to be Mr. Davidson, Mr. Janke and John Braca. Mr.
Braca is expected to be the chairman of the Audit Committee and Mr. Braca is expected to be the financial expert under the rules
of the SEC. The Company’s Board of Directors
has concluded that the composition of
the Audit Committee meets the requirements for independence under the rules and regulations the
Stock Market Rules
and
SEC. The Company and USG believe that, after consummation of the Merger, the functioning of the Audit Committee will comply with
the applicable requirements of the rules and regulations of the
Stock Market Rules and SEC.
Compensation Committee
The Compensation Committee was
formed in October 2014. Among other things, it is responsible for:
|
·
|
reviewing and making recommendations to the Board with respect to the compensation of our officers
and directors, including the CEO;
|
|
·
|
overseeing and administering the Company’s executive compensation plans, including equity-based
awards;
|
|
·
|
negotiating and overseeing employment agreements with officers and directors; and
|
|
·
|
overseeing how the Company’s compensation policies and practices may affect the Company’s
risk management practices and/or risk-taking incentives.
|
The
Compensation Committee of the combined organization is expected to retain these duties and responsibilities following completion
of the Merger.
The Board has adopted a written
charter setting forth the authority and responsibilities of the Compensation Committee.
In 2016, the Compensation Committee
consisted of Mr. Karr, Mr. Davis, and Mr. Markulec. Mr. Markulec served as chair beginning in November 2014. The Board has
affirmatively determined that each member of the Compensation Committee meets the additional independence criteria applicable to
compensation committee members under SEC rules and the Stock Market Rules.
Following completion
of the merger, the members of the Compensation Committee are expected to be
Mr. Davidson and Mr. Janke.
Mr.
Janke
is expected to be the chairman of the Compensation Committee.
The Company’s
Board of Directors has determined that each member of the Compensation Committee is independent within the meaning of the independent
director guidelines of The NASDAQ Stock Market LLC. The Company and USG believe that, after the completion of the Merger, the composition
of the Compensation Committee will meet the requirements for independence under, and the functioning of such Compensation Committee
will comply with, any applicable requirements of the rules and regulations of the Stock Market Rules and SEC.
Nominating and Corporate Governance Committee
The Nominating and Corporate Governance
Committee, among other things, is responsible for:
|
·
|
reviewing and assessing the development of the executive officers and considering and making recommendations
to the Board regarding promotion and succession issues;
|
|
·
|
evaluating and reporting to the Board on the performance and effectiveness of the directors, committees
and the Board as a whole;
|
|
·
|
working with the Board to determine the appropriate and desirable mix of characteristics, skills,
expertise and experience, including diversity considerations, for the full Board and each committee;
|
|
·
|
annually presenting to the Board a list of individuals recommended to be nominated for election
to the Board;
|
|
·
|
reviewing, evaluating, and recommending changes to the Company’s Corporate Governance Principles
and Committee Charters;
|
|
·
|
recommending to the Board individuals to be elected to fill vacancies and newly created directorships;
|
|
·
|
overseeing the Company’s compliance program, including the Code of Conduct; and
|
|
·
|
overseeing and evaluating how the Company’s corporate governance and legal and regulatory
compliance policies and practices, including leadership, structure, and succession planning, may affect the Company’s major
risk exposures.
|
The Nominating
and Corporate Governance Committee of the combined organization is expected to retain these duties and responsibilities following
completion of the Merger.
The Board of Directors has adopted
a written charter setting forth the authority and responsibilities of the Corporate Governance/Nominating Committee.
Beginning in June 2015, the Nominating
and Corporate Governance Committee consisted of Mr. Karr, Mr. Davis, and Mr. Markulec. Mr. Davis served as chair beginning in June
2015.
Following completion of the Merger, the members of the Nominating and Corporate Governance
Committee are expected to be
Mr. Davidson, Mr. Janke and John Braca.
Mr. Davidson
is expected to be the chairman of the Nominating and Corporate Governance Committee.
The
Company’s Board of Directors has determined that each member of the Nominating and Corporate Governance Committee is independent
within the meaning of the independent director guidelines of the Stock Market Rules.
Director Compensation
In
this regard, following the consummation of the Merger, it is expected that the combined company will provide compensation to non-employee
directors that is in line with Dataram’s current practices.
The Compensation Committee periodically
evaluates the compensation of directors and recommends compensation changes to the Board as appropriate. Commencing in September
2015, non-employee directors receive a combination of cash and equity compensation for service on the Board. Directors who are
employees of the Company do not receive additional cash compensation for serving on the Board, but receive equity compensation
for service on the Board in line with other directors.
While Dataram does not require
directors and officers to own a specific minimum number of shares of Dataram’s Common Stock, Dataram believes that each
director and corporate officer should have a substantial personal investment in the Company. Directors and officers may not engage
in short sales or put or call transactions with respect to Dataram securities.
Non-employee directors receive
cash compensation of $24,000 per year for their service on our Board, paid quarterly. There is no incremental compensation provided
for the board chairman, committee chair or lead director roles. Dataram employees who are also directors receive no additional
cash compensation for serving on the Board.
In addition, all directors (non-employee
and employee) receive equity awards for their service. These arrangements compensate them for their Board responsibilities while
aligning their interests with the long-term interests of our shareholders.
The Compensation Committee makes recommendations to the Board concerning director compensation under the Company’s
equity compensation plans and determines other director compensation arrangements, as appropriate. Under the Company’s Policy
on Insider Information and Insider Trading, which applies to Dataram directors, it is improper for directors to engage in short-term
or speculative transactions in Dataram securities.
Director Compensation
Name and principal position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
($)
|
Option awards
($)
|
Non-equity
incentive plan compensation
($)
|
Change in pension value and nonqualified deferred compensation earnings
($)
|
All other compensation
($)
|
Total
($)
|
Edward M. Karr
Chief Executive Officer President and Director
|
2016
|
$250,000
|
|
$250,000
(1)
|
$ -
|
$ -
|
$ -
|
$ -
|
$500,000
|
|
|
|
|
|
|
|
|
|
|
David A. Moylan
President Dataram Division and Director
|
2014
|
$236,000
|
|
243,977
(2)
|
$ -
|
$ -
|
$ -
|
$ -
|
$479,977
|
|
|
|
|
|
|
|
|
|
|
Timothy M. Janke
Director
|
2016
|
$-
|
|
$25,000
(3)
|
$ -
|
$ -
|
$ -
|
$ -
|
$25,000
|
|
|
|
|
|
|
|
|
|
|
James Dale Davidson
Director
|
2016
|
$-
|
|
$-
|
$ -
|
$ -
|
$ -
|
$ -
|
$-
|
|
|
|
|
|
|
|
|
|
|
John N. Braca
Director
|
2016
|
$-
|
|
$-
|
$ -
|
$ -
|
$ -
|
$ -
|
$-
|
|
(1)
|
On April 12, 2016, USG entered into an employment agreement with its Chief Executive Officer, Mr.
Edward Karr. The initial term of the Agreement is for two years ending on April 30, 2018, with automatic renewals for successive
one year terms unless terminated by written notice at least 90 days prior to the expiration of the term. Mr. Karr is to receive
a base salary of $250,000 per year. Mr. Karr is to receive a base salary of $250,000 per year. The Agreement calls for a bonus
of $250,000 to be awarded upon meeting certain milestone goal which is concluding a financing of at least $10,000,000, a minimum
of $2,500,000 of which must come from foreign investors. The bonus may be paid in cash, stock, or a combination thereof in the
discretion of the board.
|
|
(2)
|
President, Mr. David A. Moylan: On June 8, 2015, Dataram entered into an employment agreement with
Mr. Moylan. The initial term of the Agreement is for three years, ending on June 7, 2018, with automatic renewals for successive
one year terms unless terminated by written notice at least 90 days prior to the expiration of the term. Mr. Moylan currently receives
a base salary of $236,000 per year, and annual incentive compensation targeted at 100% of base salary.
|
|
(3)
|
On May 8, 2016 Director, Timothy M. Janke received 250,000 shares of USG stock valued at $0.10
per share.
|
Executive
Compensation
Summary Compensation Table
The following
table provides information regarding the named executive officers of USG during the fiscal year ended December 31, 2016. For the
management of the combined company after the closing of the Merger, see “Executive Compensation of the Combined Company”.
Name and principal position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
($)
|
Option awards
($)
|
Non-equity
incentive plan compensation
($)
|
Change in pension value and nonqualified deferred compensation earnings
($)
|
All other compensation
($)
|
Total
($)
|
Edward M. Karr
Chief Executive Officer (PEO)
(1)
|
2016
|
$250,000
|
|
$250,000
(2)
|
$ -
|
$ -
|
$ -
|
$ -
|
$500,000
|
|
|
|
|
|
|
|
|
|
|
David S. Rector, Chief Operating Officer (COO)
(3)
|
2016
|
$180,000
|
|
$75,000
(4)
|
$ -
|
$ -
|
$ -
|
$ -
|
$255,000
|
Notes:
|
(1)
|
On April 12, 2016, USG entered into an employment agreement with its Chief Executive Officer, Mr.
Edward Karr. The initial term of the Agreement is for two years ending on April 30, 2018, with automatic renewals for successive
one year terms unless terminated by written notice at least 90 days prior to the expiration of the term. Mr. Karr is to receive
a base salary of $250,000 per year. Mr. Karr is to receive a base salary of $250,000 per year. The Agreement calls for a bonus
of $250,000 to be awarded upon meeting certain milestone goal which is concluding a financing of at least $10,000,000, a minimum
of $2,500,000 of which must come from foreign investors. The bonus may be paid in cash, stock, or a combination thereof in the
discretion of the board.
|
|
(2)
|
On April 14, 2016, USG entered into an employment agreement and issued 833,333shares of the USG’s common
stock to the Chief Executive Officer of the USG. USG valued these common shares at the fair value of $250,000 or $0.30 per common
share based on the sale of its preferred stock in a private placement at $0.10 per common share. In connection with the issuance
of these common shares, USG recorded stock based compensation of $250,000 for the three and six months ended June 30, 2016.
|
|
(3)
|
USG’s Chief Operating Officer, Mr. David Rector, is employed under an Executive Employment
Agreement dated Apri1 14, 2016. The initial term of the Agreement is for one year, with automatic renewals for successive one year
terms unless terminated by written notice at least 30 days prior to the expiration of the term. Mr. Rector is to receive a base
salary of $15,000 per month ($180,000 annually). The agreement calls for a bonus in an amount up to the amount of the base salary,
to be awarded in the discretion of the board of directors and to be paid in cash, stock, or a combination thereof in the discretion
of the board.
|
|
(4)
|
In May 2016, USG issued an aggregate of 250,000 shares of the USG’s common stock to the Chief Operating
Officer and a director of USG for services rendered to USG. These shares vested immediately on the date of issuance. USG
valued these common shares at the fair value of $75,000 or $0.30 per common share based on the sale of its preferred stock in a
private placement at $0.30 per common share. In connection with the issuance of these common shares, USG recorded stock based compensation
of $75,000 for the three and six months ended June 30, 2016.
|
Outstanding Equity Awards at Year-End
As of
*, there are no outstanding equity awards held by any of the named executive officers of USG.
EXECUTIVE COMPENSATION
OF THE COMBINED COMPANY
The following table sets forth
certain information regarding the executive compensation upon consummation of the Merger by the combined company’s directors
and executive officers, individually, and the combined company’s directors and executive officers as a group:
Summary Compensation Table
The following
table provides information regarding the named executive officers of combined Company upon consummation of the merger.
Name and principal position
(1)
|
Year
|
Salary
($)
(1)
|
Bonus
($)
(2)
|
Stock
Awards
($)
|
Option
awards
($)
|
Non-equity
incentive plan compensation
($)
|
Change in pension value and nonqualified deferred compensation earnings
($)
|
All other compensation
($)
|
Total
($)
|
Edward M. Karr
Chief Executive Officer (PEO)
|
2017
|
$250,000
|
$-
|
$-
|
$ -
|
$ -
|
$ -
|
$ -
|
$250,000
|
|
|
|
|
|
|
|
|
|
|
David A. Moylan
President
|
2017
|
$236,000
|
$-
|
$-
|
$ -
|
$ -
|
$ -
|
$ -
|
$236,000
|
|
|
|
|
|
|
|
|
|
|
David S. Rector, Chief Operating Officer (COO)
|
2017
|
$180,000
|
$-
|
$-
|
$ -
|
$ -
|
$ -
|
$ -
|
$180,000
|
Notes:
|
(1)
|
All executives have employment agreements with Dataram or USG. A summary follows:
|
|
a.
|
Chief Executive Officer, Mr. Edward Karr. On April 12, 2016, USG entered into an employment agreement
with Mr. Karr. The initial term of the Agreement is for two years ending on April 30, 2018, with automatic renewals for successive
one year terms unless terminated by written notice at least 90 days prior to the expiration of the term. Mr. Karr is to receive
a base salary of $250,000 per year, and annual incentive compensation targeted at 100% of base salary.
|
|
b.
|
President, Mr. David A. Moylan: On June 8, 2015, Dataram entered into an employment agreement with
Mr. Moylan. The initial term of the Agreement is for three years, ending on June 7, 2018, with automatic renewals for successive
one year terms unless terminated by written notice at least 90 days prior to the expiration of the term. Mr. Moylan currently receives
a base salary of $236,000 per year, and annual incentive compensation targeted at 100% of base salary.
|
|
c.
|
Chief Operating Officer, Mr. David Rector: On April 14, 2016, USG entered into an employment agreement
with Mr. Rector. The initial term of the Agreement is for one year, with automatic renewals for successive one year terms unless
terminated by written notice at least 30 days prior to the expiration of the term. Mr. Rector is to receive a base salary of $15,000
per month ($180,000 annually), and annual incentive compensation targeted at 100% of base salary.
|
|
(2)
|
The annual bonus for the executives is determined by the Board of Director’s Compensation
Committee and subject to annual review and renegotiation. The current bonus targets for each executive as a percentage of base
salary are as follows:
|
|
a.
|
Chief Executive Officer (CEO): 100%
|
|
c.
|
Chief Operating Officer (COO): 100%
|
Outstanding Equity Awards at Year-End
As of
[ ], there are no outstanding equity awards held by any of the named executive officers of the combined Company.
Employment Agreements and Potential Termination
and Change in Control Payments
Dataram has entered into severance agreements with Mr. Moylan and Mr. Lougee which include Change in Control
provisions. Dataram also sponsors several equity incentive compensation plans that provide the executive officers with additional
compensation in connection with a termination of employment and/or change of control under certain circumstances. The information
below describes certain compensation that are paid under plans and contractual arrangements currently in effect to each of the
executive officers in the event of a termination of such executive’s employment with the Dataram and/or change of control
of the Dataram as of that date.
The amounts shown below reflect
the amount of compensation that is payable to each of the executive officers under existing plans and arrangements should the executive
officer’s employment terminate within 18 months of the change in control occurring. These benefits are in addition to benefits
available prior to the occurrence of any termination of employment, including under then-exercisable stock options and benefits
available generally to salaried employees. The table below sets forth information regarding the estimated value of the potential
payments to each of the executive officers, assuming the executive’s employment is terminated within 18 months of the change
of control.
|
Before Change of Control
|
After Change of Control
|
Name / Benefit
|
Termination Without Cause
|
Termination For Good Reason
|
Termination other than for Cause or Voluntary Resignation
|
David A. Moylan
|
|
|
|
Termination Payment
|
$500,000
|
$0
|
$500,000
|
Vesting of Stock Awards - Grants
|
100%
|
100%
|
100%
|
Vesting of Stock Awards - Options
|
Vesting schedule three months from termination date
|
Vesting schedule three months from termination date
|
Vesting schedule three months from termination date
|
Health and welfare benefits
|
$5,683
|
$0
|
$5,683
|
|
|
|
|
Anthony M. Lougee
|
|
|
|
Termination Payment
|
$200,000
|
$0
|
$200,000
|
Vesting of Stock Awards - Grants
|
100%
|
100%
|
100%
|
Vesting of Stock Awards - Options
|
Vesting schedule three months from termination date
|
Vesting schedule three months from termination date
|
Vesting schedule three months from termination date
|
Health and welfare benefits
|
$15,397
|
$0
|
$15,397
|
US Gold has entered into severance agreements with Mr. Karr and Mr. Rector which include Change in Control
provisions. USG also sponsors several equity incentive compensation plans that provide the executive officers with additional compensation
in connection with a termination of employment and/or change of control under certain circumstances. The information below describes
certain compensation that is paid under plans and contractual arrangements currently in effect to each of the executive officers
in the event of a termination of such executive’s employment with the USG and/or change of control of the USG as of that
date.
|
Before Change of Control
|
After Change of Control
|
Name / Benefit
|
Termination Without Cause
|
Termination For Good Reason
|
Termination other than for Cause or Voluntary Resignation
|
Edward M. Karr
|
|
|
|
Termination Payment
|
$250,000
|
$0
|
$250,000
|
Vesting of Stock Awards - Grants
|
Unvested awards forfeit
|
Unvested awards forfeit
|
100%
|
Vesting of Stock Awards - Options
|
Unvested awards forfeit
|
Unvested awards forfeit
|
100%
|
Health and welfare benefits
|
$0
|
$0
|
$0
|
|
|
|
|
David S. Rector
|
|
|
|
Termination Payment
|
$0
|
$0
|
$0
|
Vesting of Stock Awards - Grants
|
Unvested awards forfeit
|
Unvested awards forfeit
|
100%
|
Vesting of Stock Awards - Options
|
Unvested awards forfeit
|
Unvested awards forfeit
|
100%
|
Health and welfare benefits
|
$0
|
$0
|
$0
|
In addition, in connection with any actual termination of employment or change in control transaction, USG
may determine to enter into an agreement or to establish an arrangement providing additional benefits or amounts, or altering the
terms of benefits described below, as the Compensation Committee determines appropriate. Due to the number of factors that affect
the nature and amount of any benefits provided upon the events discussed below, any actual amounts paid or distributed may be higher
or lower than reported below. Factors that could affect these amounts include the timing during the year of any such event, USG’s
stock price and the executive’s age.
RELATED PARTY TRANSACTIONS
OF DIRECTORS AND EXECUTIVE OFFICERS OF THE COMBINED COMPANY
DATARAM TRANSACTIONS
The Audit
Committee has responsibility for reviewing and, if appropriate, for approving any related party transactions that would be required
to be disclosed pursuant to applicable SEC rules.
Described
below are any transactions during the fiscal year ended April 30, 2016 and 2015 and any currently proposed transactions to which
the Company was a party in which
|
·
|
The amounts involved exceeded or will exceed the
lower of either $120,000 or 1% of the average of the Company’s total assets at year-end for the last two completed fiscal
years; and
|
|
·
|
A director, executive officer, holder of more
than 5% of the outstanding capital stock of the Company, or any member of such person’s immediate family had or will have
a direct or indirect material interest.
|
For the fiscal year ended April
30, 2016, there were no such transactions entered into since May 1, 2015, and the Audit Committee reviewed and approved these transactions.
Apart from any transactions disclosed herein, no such transaction was entered into with any director or executive officer during
the last fiscal year. Such transactions will be entered into only if found to be in the best interest of the Company and approved
in accordance with the Company’s Code of Ethics, which are available on the Company’s web site.
During the fiscal years ended April
30, 2016 and 2015, the Company purchased inventories for resale totaling approximately $381,000 and $1,348,000, respectively, from
Sheerr Memory, LLC (“Sheerr Memory”). Sheerr Memory’s owner (“Mr. Sheerr”) is employed by the Company
as an advisor. Approximately $11,000 and $15,000 of accounts payable in the Company’s consolidated balance sheets as of April
30, 2016 and April 30, 2015, respectively, is payable to Sheerr Memory. Sheerr Memory offers the Company trade terms of net 30
days and all invoices are settled in the normal course of business. No interest is paid. The Company has made approximately $19,000
in purchases from Sheerr Memory subsequent to April 30, 2016 and management anticipates that the Company will continue to do so,
although the Company has no obligation to do so.
During the fiscal years ended April
30, 2016 and 2015, the Company purchased inventories for resale totaling approximately $1,181,000 and $1,150,000, respectively,
from Keystone Memory Group (“Keystone Memory”). Keystone Memory’s owner is a relative of Mr. Sheerr. Approximately
$190,000 of accounts payable in the Company’s consolidated balance sheets as of April 30, 2016 is payable to Keystone Memory.
At April 30, 2015 approximately $32,000 of accounts payable was due Keystone Memory. Keystone Memory offers the Company trade terms
of immediately due and all invoices are settled in the normal course of business. No interest is paid. The Company has made approximately
$290,000 in purchases from Keystone Memory subsequent to April 30, 2016 and management anticipates that the Company will continue
to do so, although the Company has no obligation to do so.
On October 31, 2013, the Company
entered into an agreement with Mr. Sheerr to leaseback the equipment and furniture that was sold to Mr. Sheerr on October 31, 2013
for $500,000. The lease is for a term of 60 months and the Company is obligated to pay approximately $7,500 per month for the term
of the lease. The Company has an option to extend the lease for an additional two year period. The transactions described have
been accounted for as a sale-leaseback transaction. Accordingly, the Company recognized a gain on the sale of assets of approximately
$103,000, which is the amount of the gain on sale in excess of present value of the future lease payments and will recognize the
remaining deferred gain of approximately $358,000 in proportion to the related gross rental charged to expense over the term of
the lease, 60 months. The current portion of $72,000 deferred gain was reflected in accrued liabilities and the long-term portion
of $179,000 is reflected in other liabilities – long-term in the condensed consolidated balance sheet as of April 30, 2015.
As of April 30, 2016, the current portion of $72,000 deferred gain is reflected in accrued liabilities and the long-term portion
of $107,000 is reflected in other liabilities – long-term in the consolidated balance sheet as of April 30, 2016.
USG TRANSACTIONS
Described
below are any transactions from USG’s inception February 14, 2014 to December 30, 2016 and any currently proposed transactions
to which the Company was a party in which:
|
·
|
The amounts involved exceeded or will exceed the
lower of either $120,000 or 1% of the average of USG’s total assets at year-end for the last two completed fiscal years;
and
|
|
·
|
A director, executive officer, holder of more
than 5% of the outstanding capital stock of USG, or any member of such person’s immediate family had or will have a direct
or indirect material interest.
|
The principal shareholder of USG,
Copper King, from time to time, provided advances to USG for working capital purposes. Additionally, during fiscal 2014, Copper
King also provided advances to USG for transaction/legal cost related to the purchase of the mineral properties in July 2014. At
December 31, 2015 and 2014, USG had a payable to such related party of $123,624. These advances are non-interest bearing and due
on demand.
On April 1, 2016, USG issued a
5% Promissory Note due July 1, 2016 to the principal shareholder of USG, Copper King in the amount of $285,000. This promissory
note does not contain any conversion features. At June 30, 2016, accrued interest amounted $2,850. In August 2016, USG paid back
the principal amount of the note together with the accrued interest for a total of $289,710.
Accounts payable to two related
parties as of June 30, 2016 was $95,567 and was reflected as accounts payable and accrued liabilities – related parties.
The related parties are Copper King and a managing member of Copper King.
On April 14, 2016, USG entered
into an employment agreement and issued 2,500,000 shares of USG’s common stock to the Chief Executive Officer of USG.
In May 2016, USG issued an aggregate
of 750,000 shares of USG’s common stock to the Chief Operating Officer and a director of USG for services rendered to USG.
On June 13, 2016, USG and Dataram,
entered into the Merger Agreement with DAS, Inc. USG’s Chief Executive Officer and Director, Mr. Edward Karr, also serves
as a member of the Board of Directors of Dataram.
DATARAM CORPORATION AND U.S.
GOLD CORP.
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The unaudited
pro forma condensed combined balance sheet as of October 31, 2016 combines the historical consolidated balance sheets of Dataram
and USG, giving effect to the acquisition of USG by Dataram.
The unaudited
pro forma condensed combined statements of operations for the fiscal year ended April 30, 2016 and for the six months ended October
31, 2016 are prepared by Dataram and give effect to the following transactions as if they had occurred on May 1, 2015:
|
·
|
the anticipated acquisition of USG by Dataram,
including the related equity to be issued by Dataram to finance the acquisition.
|
The historical
consolidated financial information has been adjusted to give effect to pro forma events that are (1) directly attributable to the
aforementioned transaction, (2) factually supportable, and (3) with respect to the statements of loss, expected to have a continuing
impact on the combined results. The unaudited pro forma condensed combined financial information should be read in conjunction
with the accompanying notes to the unaudited pro forma condensed combined financial statements. In addition, the unaudited pro
forma condensed combined financial information was based on and should be read in conjunction with the:
|
·
|
separate audited consolidated financial statements
of Dataram as of and for the years ended April 30, 2016 and 2015 and the related notes, included in Dataram’s Annual Report
on Form 10-K for the year ended April 30, 2016;
|
|
·
|
audited financial statements of USG as of and
for the year ended April 30, 2016 and 2015 and the related notes included herein;
|
|
·
|
separate unaudited consolidated financial statements
of Dataram as of and for the six months ended October 31, 2016 and the related notes, included in Dataram’s Quarterly Report
on Form 10-Q for the quarter ended October 31, 2016; and
|
|
·
|
unaudited financial statements of USG as of October
31, 2016 and for the six months October 31, 2016 and 2015 and the related notes included herein.
|
The unaudited
pro forma condensed combined financial information has been presented for informational purposes only. The pro forma information
is not necessarily indicative of what the combined Company’s financial position or results of operations actually would have
been had the acquisition been completed as of the dates indicated. In addition, the unaudited pro forma condensed combined financial
information does not purport to project the future financial position or operating results of the combined company.
Any material
transactions between Dataram and USG during the periods presented in the unaudited pro forma condensed combined financial statements
have been eliminated.
The unaudited
pro forma condensed combined financial information has been prepared using the acquisition method of accounting under U.S. GAAP.
The accounting for the acquisition of USG is dependent upon certain valuations that are provisional and are subject to change.
Dataram will finalize these amounts as it obtains the information necessary to complete the measurement process. Accordingly, the
pro forma adjustments are preliminary and have been made solely for the purpose of providing unaudited pro forma condensed combined
financial information. Differences between these preliminary estimates and the final acquisition accounting may occur and these
differences could be material. Additionally, the differences, if any, could have a material impact on the accompanying unaudited
pro forma condensed combined financial statements and Dataram’s future results of operations and financial position.
In addition,
the unaudited pro forma condensed combined financial information does not reflect any cost savings, operating synergies or revenue
enhancements that the combined company may achieve as a result of the acquisition USG, the costs to integrate the operations of
Dataram, USG or the costs necessary to achieve these cost savings, operating synergies and revenue enhancements.
Selected Unaudited Pro Forma
Condensed Combined Financial Data of Dataram and USG
UNAUDITED PRO
FORMA CONDENSED COMBINED BALANCE SHEET
As of October
31, 2016
(in
thousands except per share and per share amounts)
|
|
Historical
|
|
|
|
|
|
|
|
|
|
|
|
US Gold
|
|
|
Dataram
|
|
|
Pro Forma
Adjustment
|
|
|
Note X
|
|
Pro Forma
Combined
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
9,001
|
|
|
|
63
|
|
|
$
|
—
|
|
|
(a)
|
|
$
|
9,064
|
|
Accounts receivable, net
|
|
|
—
|
|
|
|
1,392
|
|
|
|
|
|
|
|
|
|
1,392
|
|
Inventories, net
|
|
|
—
|
|
|
|
1,329
|
|
|
|
|
|
|
|
|
|
1,329
|
|
Other current assets
|
|
|
342
|
|
|
|
213
|
|
|
|
(123
|
)
|
|
(c)
|
|
|
432
|
|
Total current assets
|
|
|
9,343
|
|
|
|
2,997
|
|
|
|
|
|
|
|
|
|
12,217
|
|
Property and equipment, net
|
|
|
—
|
|
|
|
28
|
|
|
|
|
|
|
|
|
|
28
|
|
Other assets
|
|
|
4,137
|
|
|
|
34
|
|
|
|
|
|
|
|
|
|
4,171
|
|
Capitalized development expense
|
|
|
—
|
|
|
|
300
|
|
|
|
(300
|
)
|
|
(d)
|
|
|
—
|
|
Other intangible assets
|
|
|
—
|
|
|
|
—
|
|
|
|
927
|
|
|
(d)
|
|
|
927
|
|
Goodwill
|
|
|
—
|
|
|
|
1,083
|
|
|
|
3,706
|
|
|
(d)
|
|
|
4,789
|
|
Total Assets
|
|
$
|
13,480
|
|
|
|
4,442
|
|
|
$
|
—
|
|
|
|
|
$
|
22,132
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Shareholders' Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and accrued liabilities
|
|
$
|
115
|
|
|
|
664
|
|
|
$
|
—
|
|
|
|
|
$
|
779
|
|
Accounts payable - related party
|
|
|
3
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
3
|
|
Note payable - related party
|
|
|
—
|
|
|
|
80
|
|
|
|
|
|
|
|
|
|
80
|
|
Short term debt - bank
|
|
|
—
|
|
|
|
988
|
|
|
|
|
|
|
|
|
|
988
|
|
Total current liabilities
|
|
|
118
|
|
|
|
1,732
|
|
|
|
|
|
|
|
|
|
1,850
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other liabilities
|
|
|
—
|
|
|
|
72
|
|
|
|
|
|
|
|
|
|
72
|
|
Total Liabilities
|
|
|
118
|
|
|
|
1,804
|
|
|
|
|
|
|
|
|
|
1,922
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders' Equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Convertible Series A Preferred stock ($0.0001 Par Value; 23,000 Shares Authorized; 20,000 issued and outstanding as of October 31, 2016
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
(b)
|
|
|
—
|
|
Series B Preferred stock ($0.0001 Par Value; 600,000 Shares Authorized; 562,349 issued and outstanding as of October 31, 2016
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
(b)
|
|
|
—
|
|
Preferred stock series B, par value $12.20 per share, designated 400,000 shares 48,916 issued and outstanding as October 31, 2106
|
|
|
—
|
|
|
|
597
|
|
|
|
(597
|
)
|
|
(g)
|
|
|
—
|
|
Preferred stock series C, par value $0.001 per share, designated 5,500,000 shares 5,428,293 issued and outstanding as of October 31, 2016
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
—
|
|
Preferred stock series D, par value $136.00 per share, designated 7,402 shares (liquidation value $503,000)
|
|
|
—
|
|
|
|
503
|
|
|
|
—
|
|
|
|
|
|
503
|
|
Common stock, par value $.001 per share, 200,000,000 Authorized; 50,308,790 shares to be outstanding
|
|
|
1
|
|
|
|
4
|
|
|
|
42
|
|
|
(b)
|
|
|
50
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
|
|
(g)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional paid-in capital
|
|
|
15,819
|
|
|
|
28,432
|
|
|
|
(41
|
)
|
|
(b)
|
|
|
22,238
|
|
|
|
|
|
|
|
|
|
|
|
|
593
|
|
|
(g)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,333
|
|
|
(d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(26,898
|
)
|
|
(e)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated deficit
|
|
|
(2,458
|
)
|
|
|
(26,898
|
)
|
|
|
26,898
|
|
|
(e)
|
|
|
(2,581
|
)
|
|
|
|
|
|
|
|
|
|
|
|
(123
|
)
|
|
(c)
|
|
|
|
|
Total shareholders' equity
|
|
|
13,362
|
|
|
|
2,638
|
|
|
|
|
|
|
|
|
|
20,210
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities and Shareholders' Equity
|
|
$
|
13,480
|
|
|
|
4,442
|
|
|
$
|
—
|
|
|
|
|
$
|
22,132
|
|
UNAUDITED PRO
FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
Year
Ended April 30, 2016
(in
thousands except per share and per share amounts)
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
Pro Forma
|
|
|
|
US Gold
|
|
|
Dataram
|
|
|
Adjustment
|
|
|
Note X
|
|
Combined
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
—
|
|
|
$
|
25,182
|
|
|
|
|
|
|
|
|
$
|
25,182
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales
|
|
|
—
|
|
|
|
20,464
|
|
|
|
|
|
|
|
|
|
20,464
|
|
Engineering
|
|
|
—
|
|
|
|
191
|
|
|
|
|
|
|
|
|
|
191
|
|
Selling, general and administrative
|
|
|
407
|
|
|
|
5,767
|
|
|
|
|
|
|
|
|
|
6,174
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
407
|
|
|
|
26,422
|
|
|
|
|
|
|
|
|
|
26,829
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expense, net
|
|
|
—
|
|
|
|
(168
|
)
|
|
|
|
|
|
|
|
|
(168
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on sale of State NOL
|
|
|
—
|
|
|
|
190
|
|
|
|
|
|
|
|
|
|
190
|
|
Income tax expense
|
|
|
—
|
|
|
|
(3
|
)
|
|
|
|
|
|
|
|
|
(3
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
(407
|
)
|
|
|
(1,221
|
)
|
|
|
|
|
|
|
|
|
(1,628
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividend – Series A preferred stock
|
|
|
0
|
|
|
|
122
|
|
|
|
(122
|
)
|
|
(f)
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss allocated to common shareholders
|
|
|
(407
|
)
|
|
|
(1,343
|
)
|
|
|
|
|
|
|
|
|
(1,628
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share of common stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
($
|
3.42
|
)
|
|
($
|
1.07
|
)
|
|
|
|
|
|
|
|
($
|
0.03
|
)
|
Weighted average common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
118,933
|
|
|
|
1,255,414
|
|
|
|
48,934,443
|
|
|
|
|
|
50,308,790
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
UNAUDITED
PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
Six
Months October 31, 2016
(in
thousands except per share and per share amounts)
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
Pro Forma
|
|
|
|
US Gold
|
|
|
Dataram
|
|
|
Adjustment
|
|
|
Note X
|
|
Combined
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
—
|
|
|
$
|
9,594
|
|
|
|
|
|
|
|
|
$
|
9,594
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales
|
|
|
—
|
|
|
|
8,018
|
|
|
|
|
|
|
|
|
|
8,018
|
|
Engineering
|
|
|
—
|
|
|
|
98
|
|
|
|
|
|
|
|
|
|
98
|
|
Selling, general and administrative
|
|
|
2,033
|
|
|
|
2,580
|
|
|
|
|
|
|
|
|
|
4,613
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,033
|
|
|
|
10,696
|
|
|
|
|
|
|
|
|
|
12,729
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expense, net
|
|
|
(4
|
)
|
|
|
(84
|
)
|
|
|
|
|
|
|
|
|
(88
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax expense
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
(2,037
|
)
|
|
|
(1,186
|
)
|
|
|
|
|
|
|
|
|
(3,223
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share of common stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
($
|
0.22
|
)
|
|
($
|
0.40
|
)
|
|
|
|
|
|
|
|
($
|
0.06
|
)
|
Weighted average common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
9,265,489
|
|
|
|
2,942,591
|
|
|
|
38,100,710
|
|
|
|
|
|
50,308,790
|
|
Note 1: Preliminary Purchase Price Allocation:
The Company issued to USG shares
of Common Stock which represented approximately 91% of the combined company. The purchase price which represents the consideration
transferred in the reverse merger upon closing is calculated based on the number of shares of the combined company that the Company’s
shareholders owned as of the closing of the Merger. The accompanying unaudited pro forma condensed combined financial statements
reflect an estimated purchase price of approximately $6.971 million, which consists of the following:
|
|
Share and Per Share Amounts
|
|
Estimated number of common stock of the combined company to be owned by Dataram shareholders
|
|
|
4,042,116
|
|
Estimated number of common stock equivalents, calculated on an as-converted basis, underlying Dataram Preferred Stock to be owned by Dataram shareholders
|
|
|
369,853
|
|
Estimated Total Shares
|
|
|
4,411,969
|
|
Dataram estimated per common share fair value
|
|
$
|
1.58
|
|
Total Consideration
|
|
$
|
6,970,911
|
|
The value of the consideration
transferred is based upon the estimated value of Dataram Common and Preferred Stock as of the transaction date (effective time
of the merger). The Company estimates 4,042,116 shares of Common Stock to be outstanding at an estimated per share fair value of
$1.58. The Company estimated the value of outstanding Preferred Stock using the as-converted number of Common Stock equivalents.
The Company estimated 369,853 Common Stock equivalents at an estimated fair value of $1.58 per share.
The allocation of the preliminary
purchase price to the estimated fair values of assets acquired and liabilities assumed as of October 31, 2016, is as follows:
|
|
Based on Historical
Balance Sheet of
Dataram at
October 31, 2016
|
|
Total Consideration
|
|
$
|
6,971
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
63
|
|
Accounts receivable, net
|
|
|
1,392
|
|
Inventories, net
|
|
|
1,329
|
|
Other current assets
|
|
|
213
|
|
Property and equipment, net
|
|
|
28
|
|
Other assets
|
|
|
34
|
|
Accounts payable and accrued liabilities
|
|
|
(664
|
)
|
Note payable - related party
|
|
|
(80
|
)
|
Short term debt - bank
|
|
|
(988
|
)
|
Other liabilities
|
|
|
(72
|
)
|
Net assets acquired
|
|
|
1,255
|
|
excess of purchase price over net assets acquired before allocation to identifiable intangible assets and goodwill
|
|
$
|
5,716
|
|
|
|
|
|
|
Capitalized development costs
|
|
|
927
|
|
Goodwill
|
|
|
4,789
|
|
|
|
$
|
5,716
|
|
Note 2:
|
a)
|
The closing of the Merger between USG and the Company is contingent upon USG completing a common
equity financing of at least $3,000,000. As of October 31, 2016, this equity financing was competed. Gross proceeds were approximately
$12.0M, of which USG received net cash proceeds of $10.6M.
|
|
b)
|
Represents the conversion of USG equity into Dataram equity for this purpose all blockers were
ignored. The holders of USG Series A Preferred Stock will receive 22,334,893 shares of the Company’s Common Stock. The holders
of USG Series B Preferred Stock will receive 1,866,717 shares of the Company’s Common Stock. The holders of USG common stock
issued in connection with the financing discussed in (a) above will receive 18,094,362 shares of the Company’s Series C Preferred
Stock. The holders of USG common stock issued in connection with the closing of the Keystone Acquisition will receive 1,850,000
shares of the Company’s Common Stock. The following table illustrates the Preferred Stock holders estimated common share
equivalents at the time of closing.
|
|
|
Common Share
|
|
|
|
Equivalents
|
|
USG Preferred Series A
|
|
|
22,334,893
|
|
USG Preferred Series B
|
|
|
1,866,717
|
|
USG Preferred Series C
|
|
|
18,094,362
|
|
Dataram Preferred Series D
|
|
|
369,853
|
|
Total
|
|
|
42,665,825
|
|
|
c)
|
Represents the transaction costs directly associated with the execution of the transaction. These
amounts are included as prepaid expenses on the unadjusted balance sheet of the Company.
|
|
d)
|
Represents the preliminary purchase price allocation. Amounts previously recorded as capitalized
development expense will be fair valued and recorded under the caption other intangible assets. These other intangible assets are
estimated to be $927. These development costs will either be amortized as we commence our development activity or impaired if the
cost cannot be recovered. Goodwill was recorded as the excess of consideration transferred over the estimated fair value of net
identifiable assets acquired. See note 1, Preliminary Purchase Price Allocation, for additional information. For proforma purposes,
it was assumed development activity has yet to commence.
|
|
e)
|
To reflect the elimination of the Company’s accumulated deficit, which will be recorded concurrent
with the purchase price allocation described in note 1.
|
|
f)
|
Eliminate the Dataram Preferred Series A dividend
|
|
g)
|
Represents the conversion of the Dataram Series B preferred stock to Common Equivalent Shares.
|
The purchase price allocation will
remain preliminary until the Company completes a final valuation of the assets acquired and liabilities assumed as of the date
that the Merger is consummated. The excess of consideration transferred over the estimated fair value of net identifiable assets
acquired will be allocated to goodwill. The final determination of the allocation of consideration transferred is expected to be
completed as soon as practicable after consummation of the Merger, but will in no event exceed one year from the acquisition date.
The final amounts allocated to assets acquired and liabilities assumed could differ significantly from the amounts presented in
the unaudited pro forma condensed combined financial statements. For acquired working capital accounts such as trade receivables,
inventories and other current assets, accounts payable and accrued liabilities, the Company determined that no preliminary fair
value adjustments were required due to the short timeframe until settlement for these assets and liabilities. The Company assessed
longer term assets and liabilities such as property and equipment, other assets and other liabilities and determined that no material
fair value adjustment was required for the purposes of pro forma disclosures. Other related party notes payable and short term
bank debt carry interest rates that approximate current market rates; the Company therefore has not made any fair value adjustments
to these balances.
The purchase price was allocated
to identifiable intangible assets acquired and liabilities assumed based on their acquisition-date estimated fair values. The identifiable
intangible assets included trade name, acquired technology, and customer relationships. The Company expects to utilize an estimate
of expected future cash flows using an income approach to value these assets. The present value of future cash flows was then determined
utilizing an estimated risk-adjusted discount rate. This approach requires several judgments and assumptions to determine the fair
value of intangible assets, including growth rates, discount rates, attrition rates, obsolescence factors, expected levels of cash
flows, and tax rate. The estimated fair value will be adjusted based upon the final valuation and any such adjustments could be
significant. The final valuation is expected to be completed within 12 months after the consummation of the Merger. The Company
has assumed an estimated 5 year life for these other intangible assets. Amortization expense is reflected in the pro forma adjustments.
This intangible asset will be tested for impairment on an annual basis, or earlier if impairment indicators are present.
Goodwill represents the excess
of the preliminary estimated purchase price over the preliminary estimated fair value of the assets acquired and liabilities assumed.
Goodwill will not be amortized, but will be evaluated for impairment on an annual basis or more frequently if an event occurs or
circumstances change that would more likely-than-not reduce the fair value below its carrying amount. In the event that the Company
determines that the value of goodwill has become impaired, an impairment charge will be recorded in the period in which the determination
is made.
DESCRIPTION
OF DATARAM CAPITAL STOCK
The following
description of the Company’s capital stock is not complete and may not contain all the information you should consider before
investing in the Company’s capital stock. This description is summarized from, and qualified in its entirety by reference
to, the Company’s Articles of Incorporation, as amended, which has been publicly filed with the SEC. See “Where You
Can Find More Information.”
The Company’s authorized
capital stock consists of:
|
·
|
54,000,000 shares of common stock, $0.001 par value; and
|
5,000,000 shares of preferred
stock, $0.001 par value, (i) 1,300,000 of which are designated as Series A Convertible Preferred Stock, (ii) 400,000 of which are
designated as Series B Convertible Preferred Stock and (iii) 7,402 of which are designated as Series D Convertible Preferred Stock
Common Stock
The holders
of Common Stock are entitled to one vote per share on all matters to be voted upon by the shareholders and there are no cumulative
rights. Subject to preferences that may be applicable to any outstanding preferred stock, the holders of Common Stock are entitled
to receive ratably any dividends that may be declared from time to time by the Board of Directors out of funds legally available
for that purpose. In the event of liquidation of the Company, dissolution or winding up, the holders of Common Stock are entitled
to share ratably in all assets remaining after payment of liabilities, subject to prior distribution rights of preferred stock
then outstanding. The Common Stock has no preemptive or conversion rights or other subscription rights. There are no redemption
or sinking fund provisions applicable to the Common Stock. The outstanding shares of Common Stock are fully paid and non-assessable,
and any shares of Common Stock to be issued upon an offering pursuant to this proxy statement/prospectus and the related prospectus
supplement will be fully paid and nonassessable upon issuance.
Preferred
Stock
The
following description of preferred stock and the description of the terms of any particular series of preferred stock of the Company
are not complete. These descriptions are qualified in their entirety by reference to the Company’s Articles of Incorporation,
as amended, and the certificate of designation relating to each such series. The rights, preferences, privileges and restrictions
of the preferred stock of each series will be fixed by the certificate of designation relating to such series.
The
Company currently has 3,699 shares of Series D Preferred Stock outstanding and is convertible into 369,853 shares of Common Stock.
The Company’s
Board of Directors has the authority, without further action by the shareholders, to issue shares of preferred stock in one or
more series and to fix the rights, preferences, privileges and restrictions granted to or imposed upon the preferred stock. Any
or all of these rights may be greater than the rights of the Company’s Common Stock.
The Company’s
Board of Directors, without shareholder approval, can issue preferred stock with voting, conversion or other rights that could
negatively affect the voting power and other rights of the holders of Common Stock. Preferred stock could thus be issued with terms
calculated to delay or prevent a change in control of the Company or make it more difficult to remove the Company’s management.
Additionally, the issuance of preferred stock may have the effect of decreasing the market price of the Company’s Common
Stock.
The Company’s Board
of Directors may specify the following characteristics of any preferred stock:
|
·
|
the maximum number of shares;
|
|
·
|
the designation of the shares;
|
|
·
|
the voting rights, if any;
|
|
·
|
the price and the terms and conditions for redemption,
if any;
|
|
·
|
a sinking fund or similar provision, and, if so,
the terms and provisions relating to the purpose and operation of the fund;
|
|
·
|
the dividend rate, if any, whether dividends will
be cumulative, whether dividends will be payable in cash, stock or other property and the preference to or the relation to the
payment of dividends payable on another or class of stock;
|
|
·
|
the preferences, if any, and the amounts thereof
which the holders of any class or series thereof are entitled to receive upon the voluntary or involuntary dissolution of, or upon
any distribution of assets of, the Company;
|
|
·
|
the terms and conditions, if any, for conversion
or exchange of shares of any other class or classes or of any other series of the same or any other class or classes of stock of
the Company and the conversion price(s) or ratio(s) or the rate(s) at which such exchange may be made; and
|
|
·
|
any or all other preferences and relative, participating,
optional or other special rights, privileges or qualifications, limitations or restrictions the Board of Directors deems advisable.
|
Series B Convertible Preferred Stock
The Company
filed with the Secretary of State of the State of Nevada a Certificate of Designation of Preferences, Rights and Limitations of
0% Series B Convertible Preferred Stock (the “Series B COD”), on January 21, 2016. Pursuant to the Series B COD, the
Company designated 400,000 shares of its blank check preferred stock as Series B Preferred Stock. Each share of Series B Preferred
Stock has a stated value of $12.20 per share. In the event of a liquidation, dissolution or winding up of the Company, each
share of Series B Preferred Stock will be entitled to a per share preferential payment equal to the par value.
All
shares of capital stock of the Company will be junior in rank to Series B Preferred Stock with respect to the preferences as to
dividends, distributions and payments upon the liquidation, dissolution and winding-up of the Company unless otherwise stated.
The
Holders will be entitled to receive dividends if and when declared by the Company’s Board of Directors. In addition, the
Series B Preferred Stock shall participate on an “as converted” basis, with all dividends declared on the Common Stock.
Subject to certain limitations as set forth below, each Holder may convert the shares of Series B Preferred Stock into such number
of shares of Common Stock based on a conversion ratio, the numerator of which shall be the Base Amount (defined hereafter) and
denominator of which shall be the Conversion Price. “Base Amount” is defined, as of the applicable date of determination,
the sum of (1) the aggregate stated value of the Series B Preferred Stock to be converted, plus (2) the accrued and unpaid dividends
on Series B Preferred Stock. The conversion price of the Series B Preferred Stock is initially $0.61, subject to adjustment. The
Company is prohibited from effecting the conversion of Series B Preferred Stock to the extent that, as a result of such conversion,
the Holder would beneficially own more than 4.99%, in the aggregate, of the issued and outstanding shares of the Company’s
Common Stock calculated immediately after giving effect to the issuance of shares of Common Stock upon the conversion of the Series
B Preferred Stock
the maximum percentage. A Holder may increase or decrease the maximum percentage
by providing written notice to the Company; provided, however, that in no event shall the maximum percentage exceed 9.99%. Holders
of the Series B Preferred Stock do not possess any voting rights except as otherwise required by law. As of December 30, 2016 there
are no Shares of Series B Preferred Stock outstanding.
Series C Convertible Preferred Stock
Immediately
prior to the closing of the Merger, the Company will file a Certificate of Designation of 0% Series C Convertible Preferred Stock
(“Series C COD”) with the Secretary of State of the State of Nevada with respect to the designation of shares of Series
C Preferred Stock, par value $0.001 per share out of the Company’s blank check preferred stock. Each share of Series C Preferred
Stock will have a stated value of $[*] per share and will be convertible into such number of shares of Common Stock equal to the
Base Amount divided by the conversion price. ”Base Amount” means the sum of (1) the stated value of the Series C Preferred
Stock, plus (2) the unpaid dividend amount thereon as of such date of determination. conversion price means, with respect to each
Series C Preferred Stock, as of the conversion date or other applicable date of determination, $[*], subject to adjustment. Upon
the liquidation, dissolution or winding up of the business of the Company, each holder of Series C Preferred Stock shall be entitled
to receive, for each share of Series C Preferred Stock held an amount in cash equal to, and not more than, the par value before
payment is made to any other class or series of capital stock whose terms expressly provide that the holders of Series C Preferred
Stock should receive preferential payment and the Company’s Common Stock; provided, however, that Series B Convertible Preferred
Stock shall rank senior to Series C Preferred Stock. Holders of Series C Preferred Stock shall not possess any voting rights and
are entitled to receive dividends when and as declared by the Board of Directors. If at any time the Company grants, issues or
sells any options, convertible securities or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of Common Stock purchase rights, then each Holder will be entitled to acquire, upon the terms applicable to
such purchase rights, the aggregate purchase rights which such holder could have acquired if such holder had held the number of
shares of Common Stock acquirable upon complete conversion of all the Series C Preferred Shares (without taking into account any
limitations or restrictions on the convertibility of the Preferred Shares) held by such holder immediately before the date on which
a record is taken for the grant, issuance or sale of such purchase rights, or, if no such record is taken, the date as of which
the record holders of Common Stock are to be determined for the grant, issue or sale of such purchase rights; provided, however,
that if the holder’s right to participate in any such purchase right would result in such holder exceeding the Beneficial
Ownership Limitation (defined below), then such holder shall not be entitled to participate in such purchase right until such time
as the purchase rights would not result in such holder exceeding the Beneficial Ownership Limitation. At no time may shares of
Series C Preferred Stock be converted if such conversion would cause the holder to hold in excess of 4.99% of the issued and outstanding
Common Stock of the Company. The Series C Preferred Stock is subject to adjustment in the event of stock dividends, splits and
fundamental transactions. .
Series D Convertible Preferred Stock
The Company filed with the Secretary
of State of the State of Nevada a Certificate of Designation of Preferences, Rights and Limitations of 0% Series D Convertible
Preferred Stock (the “Series D COD”), on August 4, 2016. Pursuant to the Series D COD, the Company designated 7,402
shares of its blank check preferred stock as Series D Preferred Stock. Each share of Series D Preferred Stock has a stated value
of $136 per share, subject to adjustment. In the event of a liquidation, dissolution or winding up of the Company, each share
of Series D Preferred Stock will be entitled to a per share preferential payment equal to the greater of (a) the Base Amount (defined
hereafter) thereof on the date of such payment and (B) the amount per share such Holder would receive if such Holder converted
such Series D Preferred Stock into Common Stock immediately prior to the date of such payment. The Series D Preferred Stock ranks
senior to the Company’s capital stock other than the Company’s Series B and Series C Preferred Stock with respect to
the preferences as to dividends, distributions and payments upon the liquidation, dissolution
and winding-up of the Company.
The Holders will be entitled to receive dividends if and when declared by the
Company’s Board of Directors. In addition, the Series B Preferred Stock shall participate on an “as converted”
basis, with all dividends declared on the Common Stock. Subject to certain limitations as set forth below, each holder may convert
the shares of Series D Preferred Stock into such number of shares of Common Stock based on a conversion ratio, the numerator of
which shall be the Base Amount and denominator of which shall be the conversion price . “Base Amount” is defined, as
of the applicable date of determination, the sum of (1) the aggregate stated value of the Series D Preferred Stock to be converted,
plus (2) the accrued and unpaid dividends on Series D Preferred Stock. The conversion price of the Series D Preferred Stock is
initially $1.36, subject to adjustment. The Company is prohibited from effecting the conversion of Series D Preferred Stock to
the extent that, as a result of such conversion, the holder would beneficially own more than 4.99%, in the aggregate, of the issued
and outstanding shares of the Company’s Common Stock calculated immediately after giving effect to the issuance of shares
of Common Stock upon the conversion of the Series D Preferred Stock
(the “Maximum Percentage”).
A holder may increase or decrease the maximum percentage by providing written notice to the Company; provided, however, that in
no event shall the maximum percentage exceed 9.99%. Holders of the Series D Preferred Stock are entitled to vote on all matters
submitted to the Company’s shareholders
equal to the number of shares of Common Stock such Series D Preferred Shares
are convertible into (voting as a class with Common Stock) based on a per share price of $1.36, subject to adjustment. As of December
30, 2016, 3,699 shares of Series D Preferred Stock were outstanding and convertible into 369,853 shares of Common Stock.
Series D Preferred Shares Dividend Payable
On August 5, 2016, the Company issued and sold 3,699 shares of Series D Preferred Stock convertible into an
aggregate of 369,853 shares of common stock to accredited investors, with each share of Series D convertible Preferred Stock initially
convertible into 100 shares of Common Stock. Upon the consummation of a “Qualified Transaction” (as define in the governing
Certificate of Designation) within 120 days of the sale of the Series D Preferred Stock, or at the discretion of the Board of Directors
thereafter each share of Series D Preferred Stock will be entitled to receive a special dividend equal to one additional share
of Series D Preferred Stock.
Special
Dividend
As a condition to the consummation
of the Merger, the Company’s Board of Directors shall have declared,
Dataram shareholders
as of a record date which is no less than five (5) business days prior to the closing date of the merger, to a right entitling
each shareholder to a proportionate ownership interest, record or beneficial, equal to their ownership interest in the Company,
of the Company assets or the proceeds therefrom, as, when and if the Board of Directors of the Company elects to divest such Company
assets within eighteen (18) months of the closing date.
The special dividend will be a distribution
equal to the value of the net proceeds of any asset sale of the legacy assets. The distribution to the legacy shareholders
will be defined as the purchase price of the assets of the legacy business, less all costs directly related to the transaction.
Should the legacy business have more liabilities than assets and the assumption of such liabilities constitute the purchase price,
no distribution will be made. The distribution may be made in cash, stock, or a combination thereof, as received by the Company
from the purchaser of the legacy assets. The costs of the transaction to be deducted from the purchase price to determine
the net proceeds shall include:
|
·
|
Sale costs (including applicable legal and accounting fees
tied directly to the sale), the Company’s investment banker and broker commissions tied directly to the sale, employee bonuses
paid specifically in connection with the sale of the assets;
|
|
·
|
Costs incurred by a third party administrator overseeing
/ managing the sale of the assets, if any. This shall not include the costs of the Company’s employee’s managing the
legacy business;
|
|
·
|
Legacy business employee benefits triggered solely by the
sale of the legacy assets, such as employee severance;
|
|
·
|
Debt repayment of the legacy business by the Company, if
required as a condition of sale; and
|
|
·
|
Shareholder distribution costs for special dividend.
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Transfer Agent
The transfer agent
and registrar the Company is Equity Stock Transfer. Its address is 237 West 37
th
Street, Suite 601, New York, New York
10018.
Dividends
The Company
does not anticipate paying dividends in the foreseeable future as the Board of Directors intends to retain future earnings for
use in the Company’s business. Any future determination as of the payment of dividends will depend upon the Company’s
financial conditions, results of operations and such other factors as the Board of Directors seems relevant. In addition, the Company’s
financing agreement with Rosenthal & Rosenthal, Inc. entered into as of November 6, 2013 contains covenants limiting the declaration
and distribution of a dividend.
The Company
intends to declare for the Dataram shareholders as of a record date which is no less than five (5) business days prior to the Closing
Date, to be eligible to receive a special dividend, a right entitling each shareholder of record to a proportionate ownership interest,
record or beneficial, equal to their ownership interest in the Company, of the Company assets or the proceeds therefrom, as, when
and if the Board of Directors of the Company elects to divest such Company assets within eighteen (18) months of the closing date.
Notwithstanding
the foregoing, any determination to pay dividends subsequent to the Merger will be at the discretion of the Company’s then-current
Board of Directors and will depend upon a number of factors, including the Company’s results of operations, financial condition,
future prospects, contractual restrictions, restrictions imposed by applicable law and other factors the Company’s then-current
board of directors deems relevant.
COMPARISON OF RIGHTS OF HOLDERS
OF DATARAM STOCK AND USG STOCK
Both the
Company and USG are incorporated under the laws of the State of Nevada and, accordingly, the rights of the shareholders of each
are currently, and will continue to be, governed by the NRS. If the Merger is completed, USG shareholders will become shareholders
of the Company, and their rights will be governed by the NRS, the bylaws of the Company and, and, assuming Proposals 2 and 4 are
approved by the Company’s shareholders at the Special Meeting, the Articles of Incorporation of the Company, as amended.
The table
below summarizes the material differences between the current rights of USG shareholders under USG’s Amended and Restated
Articles of Incorporation and bylaws and the rights of the Company’ shareholders, post-Merger, under the Company’s
Articles of Incorporation, as amended and amended and restated bylaws, each as in effect immediately following the Merger.
While
the Company and USG believe that the summary tables cover the material differences between the rights of their respective shareholders
prior to the Merger and the rights of the Company’s shareholders following the Merger, these summary tables may not contain
all of the information that is important to you. These summaries are not intended to be a complete discussion of the respective
rights of the Company and USG shareholders and are qualified in their entirety by reference to the NRS and the various documents
of the Company and USG that are referred to in the summaries. You should carefully read this entire proxy statement/prospectus
and the other documents referred to in this proxy statement/prospectus for a more complete understanding of the differences between
being a shareholder of the Company and USG before the Merger and being a shareholder of the Company after the Merger. The Company
has filed copies of its current Articles of Incorporation, as amended and amended and restated bylaws with the SEC and will send
copies of the documents referred to in this proxy statement/prospectus to you upon your request. USG will also send copies of its
documents referred to in this proxy statement/prospectus to you upon your request. See the section entitled “Where You Can
Find More Information” in this proxy statement/prospectus.
Current USG Rights Compared
to Current Dataram Rights and Dataram Right’s Post-Merger
Provision
|
USG (Pre-Merger)
|
Dataram (Pre-merger)
|
Dataram (Post-Merger)
|
ELECTIONS; VOTING; PROCEDURAL MATTERS
|
Authorized Capital Stock
|
USG’s Amended and Restated Articles of Incorporation (“USG Articles”) authorizes the issuance of up 200,000,000 shares of common stock, par value $0.0001 per share and 50,000,000 shares of preferred stock, par value $0.0001 per share of which (i) 20,000 shares are designated as Series A Preferred Stock, (ii) 600,000 shares are designated as Series B Preferred Stock and (iii) 5,500,000 shares are designated as Series C Preferred Stock.
|
The Company’s Articles of Incorporation, as amended (the “Articles of Incorporation”), authorizes the issuance of up to 54,000,000 shares of common stock, par value $0.001 per share, and 5,000,000 shares of preferred stock, par value $0.001 per share of which (i) 1,300,000 are designated as Series A Preferred Stock, (ii) 400,000 are designated as Series B Preferred Stock and (ii) 7,402 are designated as Series D Preferred Stock. In addition, on or prior to the consummation of the Merger, * shares of preferred stock will be designated as Series C Preferred Stock.
|
The Company’s Articles of Incorporation, as amended (the “Articles of Incorporation”), authorizes the issuance of up to 200,000,000 shares of common stock, par value $0.001 per share, and 50,000,000 shares of preferred stock, par value $0.001 per share of which (i) 1,300,000 are designated as Series A Preferred Stock, (ii) 400,000 are designated as Series B Preferred Stock and (ii) 7,402 are designated as Series D Preferred Stock. In addition, on or prior to the consummation of the Merger, [ ] shares of preferred stock will be designated as Series C Preferred Stock.
|
Number of Directors
|
USG’s Amended and Restated Bylaws (“USG Bylaws”) provides that the authorized number of directors of USG shall be not less than 3 nor more than 15 fixed from time to time by resolution of the Board of Directors.
|
The Company’s amended and restated Bylaws (“the Bylaws”) Bylaws provide that the authorized number of directors of the Company shall be not less than 3 nor more than 15 as fixed from time to time by resolution of the Board of Directors.
|
The Company’s amended and restated Bylaws (“the Bylaws”) Bylaws provide that the authorized number of directors of the Company shall be not less than 3 nor more than 15 as fixed from time to time by resolution of the Board of Directors.
|
Removal of Directors
|
USG’s Bylaws provide that that except as provided USG’s Articles or USG Bylaws, any director or the entire Board of Directors may be removed, with or without cause, by the holders of two-thirds (2/3) of shares entitled to vote at an election of directors.
|
The Company’s Bylaws provide that except as provided in the Articles of Incorporation or Bylaws, any director or the entire Board of Directors may be removed, with or without cause, by the holders of two-thirds (2/3) of shares entitled to vote at an election of directors.
|
The Company’s Bylaws provide that except as provided in the Articles of Incorporation or Bylaws, any director or the entire Board of Directors may be removed, with or without cause, by the holders of two-thirds (2/3) of shares entitled to vote at an election of directors.
|
Vacancies
|
USG’s Bylaws provide that unless otherwise provided in USG’s Articles, any vacancies on the board of directors, shall unless the board of directors determines by resolution that any such vacancies or newly created directorships shall be filled by shareholder vote, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the board of directors.
|
The Company’s Bylaws provide that unless otherwise provided in the Articles of Incorporation, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by shareholder vote, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified. A vacancy in the Board of Directors shall be deemed to exist under the Bylaws in the case of the death, removal or resignation of any director.
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The Company’s Bylaws provide that unless otherwise provided in the Articles of Incorporation, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by shareholder vote, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified. A vacancy in the Board of Directors shall be deemed to exist under the Bylaws in the case of the death, removal or resignation of any director.
|
Special Meeting of the Shareholders
|
USG’s Bylaws provide that unless otherwise restricted by USG’s Articles, special meetings of the board of directors may be called by the Chairman of the board, the President or any two directors of USG.
|
The Company’s Bylaws provide special meetings of the shareholders of the Company may only be called, for any purpose or purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, or (iii) the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board of Directors for adoption), and shall be held at such place, on such date, and at such time as the Board of Directors, shall determine.
|
The Company’s Bylaws provide special meetings of the shareholders of the Company may only be called, for any purpose or purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, or (iii) the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board of Directors for adoption), and shall be held at such place, on such date, and at such time as the Board of Directors, shall determine.
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Notice of Shareholder Meeting
|
USG’s Bylaws provide that except as otherwise provided by law or the USG Articles, written notice of each meeting of shareholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each shareholder entitled to vote at such meeting.
|
The Company’s Bylaws provide that except as otherwise provided by law or the Articles of Incorporation, written notice of each meeting of shareholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each shareholder entitled to vote at such meeting.
|
The Company’s Bylaws provide that except as otherwise provided by law or the Articles of Incorporation, written notice of each meeting of shareholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each shareholder entitled to vote at such meeting.
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Shareholder Nominations and Proposals
|
USG’s Bylaws provide that in order for a shareholder to make a director
nomination or propose business at an annual meeting of shareholders, the shareholder must give timely written notice to USG not
later than the close of business on the 90
th
day nor earlier than the close of business on the 120
th
day
prior to the first anniversary of the preceding year’s annual meeting.
In the event that no annual meeting was held in the previous year or the
date of the annual meeting is advanced by more than 30 days or delayed by more than 70 days from such anniversary date, notice
by the shareholder must be delivered not earlier than the close of business on the 120
th
day prior to such annual meeting
and not later than the close of business on the later of the 90
th
day prior to such annual meeting or the 10
th
day following the day on which public announcement of the date of such meeting is first made by USG.
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The Company’s Bylaws provide that in order for a shareholder to make
a director nomination or propose business at an annual meeting of shareholders, the shareholder must give timely written notice
to Company not later than the close of business on the 90
th
day nor earlier than the close of business on the 120
th
day prior to the first anniversary of the preceding year’s annual meeting.
In the event that no annual meeting was held in the previous year or the
date of the annual meeting is advanced by more than 30 days or delayed by more than 70 days from such anniversary date, notice
by the shareholder must be delivered not earlier than the close of business on the 120
th
day prior to such annual meeting
and not later than the close of business on the later of the 90
th
day prior to such annual meeting or the 10
th
day following the day on which public announcement of the date of such meeting is first made by the Company.
|
The Company’s Bylaws provide that in order for a shareholder to make
a director nomination or propose business at an annual meeting of shareholders, the shareholder must give timely written notice
to Company not later than the close of business on the 90
th
day nor earlier than the close of business on the 120
th
day prior to the first anniversary of the preceding year’s annual meeting.
In the event that no annual meeting was held in the previous year or the
date of the annual meeting is advanced by more than 30 days or delayed by more than 70 days from such anniversary date, notice
by the shareholder must be delivered not earlier than the close of business on the 120
th
day prior to such annual meeting
and not later than the close of business on the later of the 90
th
day prior to such annual meeting or the 10
th
day following the day on which public announcement of the date of such meeting is first made by the Company.
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In the event the number of directors to be elected to the board of directors of USG at any annual meeting of shareholders is increased and there is no public announcement specifying the size of the increased board of directors made by USG or naming all of the nominees for director at least 55 days prior to the first anniversary of the preceding year’s annual meeting of shareholders, then a shareholder director nomination must be delivered to USG not later than the close of business on the 10
th
day following the day on which such public announcement is first made by USG.
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In the event the number of directors to be elected to the Board of Directors of the Company at any annual meeting of shareholders is increased and there is no public announcement specifying the size of the increased Board of Directors made by the Company or naming all of the nominees for director at least 55 days prior to the first anniversary of the preceding year’s annual meeting of shareholders, then a shareholder director nomination must be delivered to the Company not later than the close of business on the 10
th
day following the day on which such public announcement is first made by the Company.
|
In the event the number of directors to be elected to the Board of Directors of the Company at any annual meeting of shareholders is increased and there is no public announcement specifying the size of the increased Board of Directors made by the Company or naming all of the nominees for director at least 55 days prior to the first anniversary of the preceding year’s annual meeting of shareholders, then a shareholder director nomination must be delivered to the Company not later than the close of business on the 10
th
day following the day on which such public announcement is first made by the Company.
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Content of Shareholder’s Notice
|
USG’s Bylaws provide that for a shareholder to make a director nomination
at an annual meeting of shareholders, the shareholder’s notice must include
(A) as to each person, if any, whom the shareholder proposes to nominate
for election or re-election as a director:
·
all
information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named
in the proxy statement as a nominee and to serving as a director if elected);
·
the
name, age, business address and residence address of the person or persons to be nominated;
·
a
description of all arrangements or understandings between the shareholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder;
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The Company’s Bylaws provide that for business to be properly brought
before an annual meeting by a shareholder or a beneficial owner, if any, on whose behalf the proposal is made (such shareholder
or such beneficial owner a “Shareholder Associated Person”), the shareholder’s notice must include:
·
a
brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at
the annual meeting and any material interest in such business of any Shareholder Associated Person;
·
the
name and address, as they appear on the Company’s books, of the Shareholder Associated Person proposing such business;
·
as
to the Shareholder Associated Person, and including any interests described below held by any member of such Shareholder Associated
Person’s immediate family sharing the same household, as of the date of such Shareholder Associated Person’s notice
(which information shall be confirmed or updated, if necessary, by such Shareholder Associated Person not later than ten (10) days
after the record date for the meeting to disclose such ownership as of the record date):
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The Company’s Bylaws provide that for business to be properly brought
before an annual meeting by a shareholder or a beneficial owner, if any, on whose behalf the proposal is made (such shareholder
or such beneficial owner a “Shareholder Associated Person”), the shareholder’s notice must include:
·
a
brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at
the annual meeting and any material interest in such business of any Shareholder Associated Person;
·
the
name and address, as they appear on the Company’s books, of the Shareholder Associated Person proposing such business;
·
as
to the Shareholder Associated Person, and including any interests described below held by any member of such Shareholder Associated
Person’s immediate family sharing the same household, as of the date of such Shareholder Associated Person’s notice
(which information shall be confirmed or updated, if necessary, by such Shareholder Associated Person not later than ten (10) days
after the record date for the meeting to disclose such ownership as of the record date):
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|
·
a
description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during
the past three years, and any other material relationships, between or among any shareholder on the one hand, and each proposed
nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including,
without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K
if such shareholder were the “registrant” for purposes of such rule and the nominee were a director or executive officer
of such registrant; and
·
a
written questionnaire with respect to the background and qualification of such person and the background of any other person or
entity on whose behalf the nomination is being made (which questionnaire shall be provided by the secretary upon written request),
and a written representation and agreement (in the form provided by the secretary upon written request) that such person (1) is
not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance
to, any person or entity as to how such person, if elected as a director of USG , will act or vote on any issue or question (a
“Voting Commitment”) that has not been disclosed to the Corporation or (B) any Voting Commitment that could limit or
interfere with such person’s ability to comply, if elected as a director of USG , with such person’s fiduciary duties
under applicable law, (C) agrees to comply with all policies of the Corporation as in effect from time to time and (D) is not and
will not become a party to any agreement, arrangement or understanding with any person or entity other than USG with respect to
any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has
not been disclosed therein.
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1. the
class or series and number of shares of capital stock of the Company which are, directly or indirectly, beneficially owned and
owned of record by such shareholder;
2. the
class or series, if any, and number of options, warrants, convertible securities, stock appreciation rights or similar rights with
an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares or
other securities of the Company, or any derivative or synthetic arrangement having the characteristics of a long position in any
class or series of shares of the Company, or any contract, derivative, swap or other transaction or series of transactions designed
to produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the Company,
including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined
by reference to the price, value or volatility of any class or series of shares of the Company, whether or not such instrument,
contract or right shall be subject to settlement in the underlying class or series of shares of the Company, through the delivery
of cash or other property, or otherwise, and without regard of whether any shareholder may have entered into transactions that
hedge or mitigate the economic effect of such instrument, contract or right or any other direct or indirect opportunity to profit
or share in any profit derived from any increase or decrease in the value of shares of the Company (any of the foregoing, a “Derivative
Instrument”) directly or indirectly, beneficially owned by such shareholder;
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1. the
class or series and number of shares of capital stock of the Company which are, directly or indirectly, beneficially owned and
owned of record by such shareholder;
2. the
class or series, if any, and number of options, warrants, convertible securities, stock appreciation rights or similar rights with
an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares or
other securities of the Company, or any derivative or synthetic arrangement having the characteristics of a long position in any
class or series of shares of the Company, or any contract, derivative, swap or other transaction or series of transactions designed
to produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the Company,
including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined
by reference to the price, value or volatility of any class or series of shares of the Company, whether or not such instrument,
contract or right shall be subject to settlement in the underlying class or series of shares of the Company, through the delivery
of cash or other property, or otherwise, and without regard of whether any shareholder may have entered into transactions that
hedge or mitigate the economic effect of such instrument, contract or right or any other direct or indirect opportunity to profit
or share in any profit derived from any increase or decrease in the value of shares of the Company (any of the foregoing, a “Derivative
Instrument”) directly or indirectly, beneficially owned by such shareholder;
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(B) as to the shareholder:
·
the
name and address of such shareholder, as it appears on USG’s books, and of each other shareholder;
·
the
class and number of shares of USG which are owned beneficially and of record by such shareholder;
·
any
Derivative Instrument (defined below) directly or indirectly owned beneficially by such shareholder;
·
any
proxy, contract, arrangement, understanding, or relationship pursuant to which the shareholder has a right to vote any class or
series of shares of USG;
·
any
Short Interests (defined below) engaged in, directly or indirectly, by the shareholder;
·
any
rights to dividends on the shares of USG owned beneficially by the shareholder that are separated or separable from the underlying
shares of USG;
·
any
proportionate interest in shares of or Derivative Instruments held, directly or indirectly, by a general or limited partnership
in which the shareholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of
such general or limited partnership;
·
a
description of any other direct or indirect opportunity to profit or share in any profit (including any performance- based fees)
derived from any increase or decrease in the value of shares or other securities of USG or Derivative Instruments, if any, including
without limitation any such interests held by members of shareholder’s immediate family sharing the same household;
·
any
significant equity interests or any Derivative Instruments or Short Interests in any principal competitor of USG held by the shareholder;
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3. a
description of any other direct or indirect opportunity to profit or share in any profit (including any performance-based fees)
derived from any increase or decrease in the value of shares or other securities of the Company or Derivative Instruments, if any,
including without limitation any such interests held by members of such shareholder’s immediate family sharing the same household;
4. any
proxy, contract, arrangement, understanding, or relationship pursuant to which any shareholder has a right to vote any shares or
other securities of the Company;
5. any
rights to dividends on the shares of the Company owned beneficially by any shareholder that are separated or separable from the
underlying shares of the Company;
6. any
proportionate interest in shares of the Company or Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which any shareholder is a general partner or, directly or indirectly, beneficially owns an interest in a general
partner of such general or limited partnership;
7. a
description of all agreements, arrangements and understandings between any shareholder and any other person(s) (including their
name(s)) in connection with or related to the ownership or voting of capital stock of the Company or Derivative Securities;
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3. a
description of any other direct or indirect opportunity to profit or share in any profit (including any performance-based fees)
derived from any increase or decrease in the value of shares or other securities of the Company or Derivative Instruments, if any,
including without limitation any such interests held by members of such shareholder’s immediate family sharing the same household;
4. any
proxy, contract, arrangement, understanding, or relationship pursuant to which any shareholder has a right to vote any shares or
other securities of the Company;
5. any
rights to dividends on the shares of the Company owned beneficially by any shareholder that are separated or separable from the
underlying shares of the Company;
6. any
proportionate interest in shares of the Company or Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which any shareholder is a general partner or, directly or indirectly, beneficially owns an interest in a general
partner of such general or limited partnership;
7. a
description of all agreements, arrangements and understandings between any shareholder and any other person(s) (including their
name(s)) in connection with or related to the ownership or voting of capital stock of the Company or Derivative Securities;
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·
any
direct or indirect interest of the shareholder in any contract with USG, any affiliate of USG or any principal competitor USG (including,
in any such case, any employment agreement, collective bargaining agreement or consulting agreement);
·
any
other information relating to the shareholder that would be required to be disclosed in a proxy statement and form of proxy or
other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election
of directors in a contested election pursuant to Section 14 of the Exchange Act; and
·
a
representation that the shareholder is a holder of record of stock of USG entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting and nominate the person or persons specified in the notice.
USG’s Bylaws provide that for business to be properly brought before
an annual meeting by a shareholder, the shareholder’s notice must include:
·
a
brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at
the annual meeting and any material interest in such business of the shareholder;
·
the
name and address, as they appear on USG’s books, of the shareholder proposing such business;
·
as
to the shareholder, and including any interests described below held by any member of such shareholder’s immediate family
sharing the same household, as of the date of such shareholder’s notice (which information shall be confirmed or updated,
if necessary, by such shareholder not later than ten days after the record date for the meeting to disclose such ownership as of
the record date):
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8. any
agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock borrowing”
agreement or arrangement, engaged in, directly or indirectly, by any shareholder the purpose or effect of which is to mitigate
loss to, reduce the economic risk (of ownership or otherwise) of any class or series of the shares of the Company by, manage the
risk of share price changes for, or increase or decrease the voting power of, such shareholder with respect to any class or series
of the shares of the Company, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived
from any decrease in the price or value of any class or series of the shares of the Company (any of the foregoing, “Short
Interests”);
9. any
significant equity interests or any Derivative Instruments or Short Interests in any principal competitor of the Company held by
any shareholder; and
10. any
direct or indirect interest of any shareholder in any contract with the Company, any affiliate of the Company or any principal
competitor of the Company (including, in any such case, any employment agreement, collective bargaining agreement or consulting
agreement);
·
if
the matter a shareholder proposes to bring before any meeting of shareholders involves an amendment to the Company’s Bylaws,
the specific wording of such proposed amendment;
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8. any
agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock borrowing”
agreement or arrangement, engaged in, directly or indirectly, by any shareholder the purpose or effect of which is to mitigate
loss to, reduce the economic risk (of ownership or otherwise) of any class or series of the shares of the Company by, manage the
risk of share price changes for, or increase or decrease the voting power of, such shareholder with respect to any class or series
of the shares of the Company, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived
from any decrease in the price or value of any class or series of the shares of the Company (any of the foregoing, “Short
Interests”);
9. any
significant equity interests or any Derivative Instruments or Short Interests in any principal competitor of the Company held by
any shareholder; and
10. any
direct or indirect interest of any shareholder in any contract with the Company, any affiliate of the Company or any principal
competitor of the Company (including, in any such case, any employment agreement, collective bargaining agreement or consulting
agreement);
·
if
the matter a shareholder proposes to bring before any meeting of shareholders involves an amendment to the Company’s Bylaws,
the specific wording of such proposed amendment;
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1. the
class or series and number of shares of capital stock of USG which are, directly or indirectly, beneficially owned and owned of
record by such shareholder;
2. the
class or series, if any, and number of options, warrants, convertible securities, stock appreciation rights or similar rights with
an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares or
other securities of USG , or any derivative or synthetic arrangement having the characteristics of a long position in any class
or series of shares of USG , or any contract, derivative, swap or other transaction or series of transactions designed to produce
economic benefits and risks that correspond substantially to the ownership of any class or series of shares of USG , including
due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined
by reference to the price, value or volatility of any class or series of shares of USG , whether or not such instrument, contract
or right shall be subject to settlement in the underlying class or series of shares of USG , through the delivery of cash or other
property, or otherwise, and without regard of whether the shareholder may have entered into transactions that hedge or mitigate
the economic effect of such instrument, contract or right or any other direct or indirect opportunity to profit or share in any
profit derived from any increase or decrease in the value of shares of USG (any of the foregoing, a “Derivative Instrument”)
directly or indirectly, beneficially owned by such shareholder;
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·
a
representation that such shareholder is a holder of record of shares of the Company entitled to vote at such meeting and that such
shareholder or its agent or designee intends to appear in person or by proxy at the meeting to bring such business before the meeting;
and
·
a
statement as to whether such shareholder will deliver a proxy statement and form of proxy to holders of at least the percentage
of the Company’s voting share required under applicable law to approve the proposal and/or otherwise solicit proxies from
shareholders in support of such proposal.
Notwithstanding the foregoing, in order to include information with respect
to a Shareholder Associated Person proposal in the proxy statement and form of proxy for a shareholder’s meeting, Shareholder
Associated Persons must provide notice as required by the regulations promulgated under the 1934 Act.
For the purpose of these Bylaws, “beneficially
owned” (and phrases of similar import), when referring to shares owned by a person, shall mean all shares which such person
is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the 1934 Act and the rules and regulations promulgated thereunder,
including shares which are beneficially owned, directly or indirectly, by any other person with which such person has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of the capital stock of the
Company.
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·
a
representation that such shareholder is a holder of record of shares of the Company entitled to vote at such meeting and that such
shareholder or its agent or designee intends to appear in person or by proxy at the meeting to bring such business before the meeting;
and
·
a
statement as to whether such shareholder will deliver a proxy statement and form of proxy to holders of at least the percentage
of the Company’s voting share required under applicable law to approve the proposal and/or otherwise solicit proxies from
shareholders in support of such proposal.
Notwithstanding the foregoing, in order to include information with respect
to a Shareholder Associated Person proposal in the proxy statement and form of proxy for a shareholder’s meeting, Shareholder
Associated Persons must provide notice as required by the regulations promulgated under the 1934 Act.
For the purpose of these Bylaws, “beneficially
owned” (and phrases of similar import), when referring to shares owned by a person, shall mean all shares which such person
is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the 1934 Act and the rules and regulations promulgated thereunder,
including shares which are beneficially owned, directly or indirectly, by any other person with which such person has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of the capital stock of the
Company.
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|
3. a
description of any other direct or indirect opportunity to profit or share in any profit (including any performance-based fees)
derived from any increase or decrease in the value of shares or other securities of USG or Derivative Instruments, if any, including
without limitation any such interests held by members of such shareholder’s immediate family sharing the same household;
4. any
proxy, contract, arrangement, understanding, or relationship pursuant to which the shareholder has a right to vote any shares or
other securities of USG;
5. any
rights to dividends on the shares of USG owned beneficially by the shareholder that are separated or separable from the underlying
shares of USG;
6. any
proportionate interest in shares of USG or Derivative Instruments held, directly or indirectly, by a general or limited partnership
in which the shareholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of
such general or limited partnership;
7. a
description of all agreements, arrangements and understandings between the shareholder and any other person(s) (including their
name(s)) in connection with or related to the ownership or voting of capital stock of USG or Derivative Securities;
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|
|
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8. any
agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock borrowing”
agreement or arrangement, engaged in, directly or indirectly, by the shareholder , the purpose or effect of which is to mitigate
loss to, reduce the economic risk (of ownership or otherwise) of any class or series of the shares of USG by, manage the risk of
share price changes for, or increase or decrease the voting power of, such shareholder with respect to any class or series of the
shares of USG , or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease
in the price or value of any class or series of the shares of USG Corporation (any of the foregoing, “Short Interests”);
9. any
significant equity interests or any Derivative Instruments or Short Interests in any principal competitor of USG held by the shareholder;
and
10. any
direct or indirect interest of the shareholder in any contract with USG (including, in any such case, any employment agreement,
collective bargaining agreement or consulting agreement).
·
if
the matter a shareholder proposes to bring before any meeting of shareholders involves an amendment to USG’s Bylaws, the
specific wording of such proposed amendment;
·
a
representation that such shareholder is a holder of record of shares of USG Company entitled to vote at such meeting and that such
shareholder or its agent or designee intends to appear in person or by proxy at the meeting to bring such business before the meeting;
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|
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·
a
statement as to whether such shareholder will deliver a proxy statement and form of proxy to holders of at least the percentage
of USG’s voting share required under applicable law to approve the proposal and/or otherwise solicit proxies from shareholders
in support of such proposal;
·
any
other information that is required to be provided by the shareholder pursuant to Regulation 14A under the Exchange Act, in his
capacity as a proponent to a shareholder proposal.
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Shareholder Action by Written Consent
|
USG’s Bylaws provide that
any person seeking to have the shareholders authorize or take corporate action by written consent without a meeting shall, by written notice, request that a record date be fixed for such purpose.
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The Company’s Bylaws provide that any 2 persons seeking to have the shareholders authorize or take corporate action by written consent without a meeting shall, by written notice addressed to the Secretary of the Company and delivered to the Company and signed by a shareholder of record, request that a record date be fixed for such purpose.
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The Company’s Bylaws provide that any 2 persons seeking to have the shareholders authorize or take corporate action by written consent without a meeting shall, by written notice addressed to the Secretary of the Company and delivered to the Company and signed by a shareholder of record, request that a record date be fixed for such purpose.
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Forum Selection
|
USG’s Bylaws provide that
the courts within the State of New York are designated as the forum for (i) any derivative action or proceeding brought on behalf USG, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer or other employee of USG to USG or USG’s shareholders, (iii) any actions asserting a claim arising pursuant to any provision of the NRS, USG’ Articles or USG’s Bylaws and (iv) any action asserting a claim governed by the internal affairs doctrine.
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The Company’s Bylaws provide that unless the Company consents in writing to the selection of an alternative forum, a state or federal court located within the State of New York shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s shareholders, (iii) any actions asserting a claim arising pursuant to any provision of the NRS, the Articles of Incorporation or the Bylaws, in each case as amended, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to such court having personal jurisdiction over the indispensable parties named as defendants therein.
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The Company’s Bylaws provide that unless the Company consents in writing to the selection of an alternative forum, a state or federal court located within the State of New York shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s shareholders, (iii) any actions asserting a claim arising pursuant to any provision of the NRS, the Articles of Incorporation or the Bylaws, in each case as amended, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to such court having personal jurisdiction over the indispensable parties named as defendants therein.
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Amendments to the Bylaws
|
USG’s Bylaws requires that an amendment to any section of USG’s Bylaws requires the affirmative vote of the holders of at least 66 2/3% of the outstanding voting power of the Company.
|
The Company’s Bylaws requires that an amendment to any section of the Bylaws requires the affirmative vote of the holders of at least 66 2/3% of the outstanding voting power of the Company.
|
The Company’s Bylaws requires that an amendment to any section of the Bylaws requires the affirmative vote of the holders of at least 66 2/3% of the outstanding voting power of the Company.
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INDEMNIFICATION OF OFFICERS AND DIRECTORS AND ADVANCEMENTS OF EXPENSES
|
Indemnification
|
USG’s Bylaws provide that USG
shall, to the fullest extent permitted by the NRS, as now or hereafter in effect, indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right of
USG
, by reason
of the fact that he is or was a director, officer, employee or agent of
USG
, or is
or was serving at the request of
USG
as a director, officer, employee or agent of
another Company, partnership, joint venture, trust or other enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding
if he: (i) is not liable pursuant to NRS Section 78.138; or (ii) acted in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful.
USG’s Articles of provide that individual liability of the directors
and officers of USG is eliminated to the fullest extent permitted by the NRS, as the same may be amended and supplemented.
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The Company’s Bylaws provides that the Company shall:
a. indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an action by or in the right of the Company, by reason of the
fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company
as a director, officer, employee or agent of another Company, partnership, joint venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection
with the action, suit or proceeding if he: (i) is not liable pursuant to Nevada Revised Statutes Section 78.138; or (ii) acted
in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the person is liable pursuant to the Nevada Revised Statutes Section 78.138 or did not
act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, or
that, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.
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The Company’s Bylaws provides that the Company shall:
a. indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an action by or in the right of the Company, by reason of the
fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company
as a director, officer, employee or agent of another Company, partnership, joint venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection
with the action, suit or proceeding if he: (i) is not liable pursuant to Nevada Revised Statutes Section 78.138; or (ii) acted
in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the person is liable pursuant to the Nevada Revised Statutes Section 78.138 or did not
act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, or
that, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.
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b. indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the Company to procure a judgment in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent
of another Company, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement
and attorneys' fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit
if he: (i) is not liable pursuant to Nevada Revised Statutes Section 78.138; or (ii) acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the Company.
c. Indemnification
may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the Company or for amounts paid in settlement to the Company, unless
and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines
upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper.
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b. indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the Company to procure a judgment in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent
of another Company, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement
and attorneys' fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit
if he: (i) is not liable pursuant to Nevada Revised Statutes Section 78.138; or (ii) acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the Company.
c. Indemnification
may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the Company or for amounts paid in settlement to the Company, unless
and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines
upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper.
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d. Any
director or officer may apply to any court of competent jurisdiction in the State of Nevada for indemnification to the extent otherwise
permissible under Article VII, Section 1. The basis of such indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances because he has met the applicable standards of conduct
set forth in Article VII, Section 1, as the case may be. Neither a contrary determination in the specific case under Article VII,
Section 1(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that
the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification
pursuant to Article VII, Section 6 shall be given to the Company promptly upon the filing of such application. If successful, in
whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting
such application to the fullest extent permitted by law.
e. The
Company shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company.
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d. Any
director or officer may apply to any court of competent jurisdiction in the State of Nevada for indemnification to the extent otherwise
permissible under Article VII, Section 1. The basis of such indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances because he has met the applicable standards of conduct
set forth in Article VII, Section 1, as the case may be. Neither a contrary determination in the specific case under Article VII,
Section 1(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that
the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification
pursuant to Article VII, Section 6 shall be given to the Company promptly upon the filing of such application. If successful, in
whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting
such application to the fullest extent permitted by law.
e. The
Company shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company.
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DIVIDENDS
|
Declaration and Payment of Dividends
|
USG’s
Bylaws provides that dividends on the capital stock of USG, subject to the provisions of USG’s Articles, if any, may be declared by the board of directors pursuant to law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of USG‘s Articles.
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The Company’s Bylaws provide that dividends upon the capital stock
of the Company, subject to the provisions of the Articles of Incorporation, if any, may be declared by the Board of Directors pursuant
to law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital stock, subject
to the provisions of the Articles of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of
the Company available for dividends such sum or sums as the Board of Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property
of the Company, or for such other purpose as the Board of Directors shall think conducive to the interests of the Company, and
the Board of Directors may modify or abolish any such reserve in the manner in which it was created.
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The Company’s Bylaws provide that dividends upon the capital stock
of the Company, subject to the provisions of the Articles of Incorporation, if any, may be declared by the Board of Directors pursuant
to law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital stock, subject
to the provisions of the Articles of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of
the Company available for dividends such sum or sums as the Board of Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property
of the Company, or for such other purpose as the Board of Directors shall think conducive to the interests of the Company, and
the Board of Directors may modify or abolish any such reserve in the manner in which it was created.
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PRINCIPAL SHAREHOLDERS OF DATARAM
The following table sets forth
certain information regarding the beneficial ownership of the Company’s Common Stock at *, 2017 by each of our directors
and executive officers, individually and all of our directors and executive officers as a group:
Name of Beneficial Owner
|
|
Role
|
|
Amount and Nature of
Beneficial Ownership
(1,2,3,4)
|
|
|
Number
|
Percent
|
|
David A. Moylan
|
|
President and CEO
|
|
[205,267]
|
4.2%
|
|
|
|
|
|
|
|
|
Anthony M. Lougee
|
|
CFO
|
|
[38,833]
|
*
|
|
|
|
|
|
|
|
|
Trent D. Davis
|
|
Director
|
|
[48,644]
|
1.0%
|
|
|
|
|
|
|
|
|
Edward M. Karr
|
|
Director
|
|
[15,311]
|
*
|
|
|
|
|
|
|
|
|
Michael E. Markulec
|
|
Director
|
|
[31,978]
|
*
|
|
|
|
|
|
|
|
|
Directors and Executive Officers as a group (5 persons)
|
|
|
|
[340,033]
|
6.9%
|
|
* Less than 1%.
(1)
The number of shares has been adjusted
to reflect the reverse 1-for-3 stock split effective July 11, 2016.
(2)
On *, 2017 [4,945,182] common shares
and equivalents were outstanding.
(3)
Unless indicated, each shareholder
has sole voting and investment power for all shares shown, subject to community property laws that may apply to create shared voting
and investment power.
(4)
Beneficial ownership includes all
stock options and restricted units held by a shareholder that are currently exercisable or exercisable within 60 days of *, 2016
(which would be *, 2016).
PRINCIPAL
SHAREHOLDERS OF USG
The following table sets forth
certain information regarding the beneficial ownership of USG’s common stock at *, 2017 by each of our directors and executive
officers, individually, and all of our directors and executive officers as a group:
Name of Beneficial Owner
|
|
Role
|
|
Amount and Nature of Beneficial Ownership
(1,2,3)
|
|
|
Number
|
Percent
|
|
Edward M. Karr
|
|
CEO, President, Director
|
|
[833,333]
|
1.7%
|
|
|
|
|
|
|
|
|
Timothy M. Janke
|
|
Director
|
|
[83,333]
|
0.2%
|
|
|
|
|
|
|
|
|
David S. Rector
|
|
COO, Director
|
|
[166,667]
|
0.3%
|
|
|
|
|
|
|
|
|
Directors and Executive Officers as a group (3 persons)
|
|
|
|
[1,083,333]
|
2.2%
|
|
* Less than 1%.
(1)
On * 2017, 48,616,089 shares common
and equivalents will be outstanding.
(2)
Unless indicated, each shareholder
has sole voting and investment power for all shares shown, subject to community property laws that may apply to create shared voting
and investment power.
(3)
Beneficial ownership includes all
stock options and restricted units held by a shareholder that are currently exercisable or exercisable within 60 days of *, 2017
LEGAL MATTERS
Sichenzia
Ross Ference Kesner LLP, will pass upon the validity of the Company’s Common Stock offered by this proxy statement/prospectus.
EXPERTS
The
consolidated financial statements of Dataram Corporation as of and for the year ended April 30, 2016 included elsewhere in
this proxy statement/prospectus have been audited by Marcum LLP, independent registered public accounting firm, as set forth
in their report appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm
as experts in accounting and auditing.
The consolidated
financial statements of Dataram Corporation as of and for the year ended April 30, 2015 incorporated herein in this proxy statement/prospectus
have been audited by Anton & Chia, LLP, independent registered public accounting firm, as set forth in their report appearing
elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts in accounting and
auditing.
The financial
statements of U.S. Gold as of April 30, 2016 and 2015, included in this proxy statement/prospectus have been audited by Marcum
LLP, independent registered public accounting firm, as set forth in their report appearing elsewhere herein, and are included in
reliance upon such report given on the authority of such firm as experts in accounting and auditing.
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
WHERE YOU CAN FIND MORE INFORMATION
The Company
files annual, quarterly and special reports, and other information with the SEC. You may read and copy any reports, statements
or other information that the Company files at the SEC public reference room in at 100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. The Company’s SEC
filings are also available to the public from commercial document retrieval services and on the website maintained by the SEC at
http://www.sec.gov.
As of
the date of this proxy statement/prospectus the Company has filed a registration statement on Form S-4 to register with the SEC
certain Merger Consideration that the Company will issue to USG shareholders in the Merger. This proxy statement/prospectus is
a part of that registration statement and constitutes a prospectus of the Company, as well as a proxy statement of the Company
for its Special Meeting.
The Company
has supplied all information contained in this proxy statement/prospectus to the Company, and USG has supplied all information
contained in this proxy statement/prospectus relating to USG.
If you
would like to request documents from the Company or USG, please send a request in writing or by telephone to either the Company
or USG at the following addresses:
Dataram Corporation
777 Alexander Road, Suite 100
Princeton, NJ 08540
Telephone: (609) 799-0071
Attn: Chief Executive Officer
|
U.S. Gold Corp.
Suite 102, Box 604
1910 East Idaho Street
Elko, NV 89801
Telephone: (755) 888-4060
Attn: Chief Executive Officer
|
DATARAM FINANCIAL STATEMENTS AND SUPPLEMENTARY
DATA
Index to Consolidated Financial Statements
|
Page
|
Consolidated Financial Statements:
|
|
|
|
|
Reports of Independent Registered Public Accounting Firms
|
141
|
|
|
|
|
Consolidated Balance Sheets as of April 30, 2016 and 2015
|
143
|
|
|
|
|
Consolidated Statements of Operations –
|
|
|
Years ended April 30, 2016 and 2015
|
144
|
|
|
|
|
Consolidated Statements of Stockholders' Equity -
|
|
|
Years ended April 30, 2016 and 2015
|
145
|
|
|
|
|
Consolidated Statements of Cash Flows -
|
|
|
Years ended April 30, 2016 and 2015
|
146
|
|
|
|
|
Notes to Consolidated Financial Statements -
|
|
|
Years ended April 30, 2016 and 2015
|
147
|
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
To the Audit Committee of the
Board of Directors and Shareholders
of Dataram Corporation
We have audited the accompanying consolidated balance
sheet of Dataram Corporation and Subsidiaries (the “Company”) as of April 30, 2016, and the related consolidated statements
of operations, stockholders’ equity and cash flows for the year then ended. These financial statements are the responsibility
of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with the standards
of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free of material misstatement.
The Company is
not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included
consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over
financial reporting. Accordingly, we express no such opinion.
An audit also includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide
a reasonable basis for our opinion.
In our opinion, the financial statements referred to
above present fairly, in all material respects, the consolidated financial position of Dataram Corporation and Subsidiaries, as
of April 30, 2016, and the consolidated results of its operations and its cash flows for the year then ended in conformity with
accounting principles generally accepted in the United States of America.
The accompanying financial statements have been prepared
assuming that the Company will continue as a going concern. As more fully described in Note 2 to the financial statements, the
Company has suffered recurring losses and needs an infusion of capital to continue its operations. These conditions raise substantial
doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are
described in Note 2. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
The financial statements of Dataram Corporation as of and for the year ended
April 30, 2015, were audited by other auditors, whose report, dated August 31, 2015 expressed an unmodified opinion on those financial
statements, which contained an explanatory paragraph as to the Company’s ability to continue as a going concern. As discussed
in Note 1 to the financial statements, the Company has adjusted its fiscal 2015 financial statements to retrospectively apply the
reverse stock split to its common stock that occurred subsequent to the year ended April 30, 2016. The other auditors reported
on the financial statements before the retrospective adjustments.
As part of our audit of the financial statements as
and for the year ended April 30, 2016, we also audited the adjustments to the fiscal 2015 financial statements to retroactively
apply the effects of the reverse stock split that occurred subsequent to the year ended April 30, 2016, as described in Note 1.
In our opinion, such adjustments are appropriate and have been properly applied. We were not engaged to audit, review, or apply
any procedures to the financial statements of Dataram Corporation for the year ended April 30, 2015, other than with respect to
the adjustments and, accordingly, we do not express an opinion, or any other form of assurance, on such financial statements as
a whole.
/s/ Marcum LLP
Marcum
llp
New York, NY
July 29, 2016
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
The Board of Directors and Stockholders’ of Dataram Corporation
We have audited, before the effects of the adjustments
to retrospectively apply the change in accounting related to the reverse stock split described in Note 1, the accompanying consolidated
balance sheet of Dataram Corporation and Subsidiaries (the “Company”) as of April 30, 2015, and the related consolidated
statement of operations, changes in stockholders’ equity, and cash flow for the years then ended. These consolidated financial
statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audit.
We conducted our audit in accordance with the standards
of the Public Company Accounting Oversight Board (United States of America). Those standards require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not
required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included
consideration of internal control over financial reporting as a basis for designing audit procedures that we considered appropriate
under the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal
control over financial reporting. Accordingly, we express no such opinion. An audit includes examining on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles
used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe
that our audit provide a reasonable basis for our opinion.
In our opinion, before the effects of the adjustments
to retrospectively apply the change in accounting related to the reverse stock split described in Note 1, the consolidated financial
statements referred to above present fairly, in all material respects, the consolidated financial position of Dataram Corporation
and Subsidiaries as of April 30, 2015, and the results of their operations and their cash flow for the year then ended, in conformity
with accounting principles generally accepted in the United States of America.
The accompanying
consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in
Note 2 to the consolidated financial statements, these conditions raise substantial doubt about its ability to continue as a going
concern. Management's plans in regard to these matters are also described in Note 2. The financial statements do not include any
adjustments relating to the recoverability and classification of asset carrying amounts or the amount and classification of liabilities
that might result should the Company be unable to continue as a going concern.
We were not engaged to audit, review or apply any procedures
to the adjustments to retrospectively apply the change in accounting related to the reverse stock split described in Note 1, accordingly,
we do not express an opinion or any other form of assurance about whether such adjustments are appropriate and have been properly
applied. Those adjustments were audited by other auditors.
/s/ Anton & Chia, LLP
Newport Beach, California
August 31, 2015
DATARAM CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
(In thousands, except share and per share amounts)
|
|
April 30,
2016
|
|
|
April 30,
2015
|
|
Assets
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
56
|
|
|
$
|
327
|
|
Accounts receivable, less allowance of $100 and $140, respectively
|
|
|
2,746
|
|
|
|
2,171
|
|
Inventories, net
|
|
|
1,336
|
|
|
|
2,089
|
|
Other current assets
|
|
|
123
|
|
|
|
69
|
|
Total current assets
|
|
|
4,261
|
|
|
|
4,656
|
|
|
|
|
|
|
|
|
|
|
Property and equipment, net
|
|
|
51
|
|
|
|
121
|
|
|
|
|
|
|
|
|
|
|
Other assets
|
|
|
30
|
|
|
|
49
|
|
Capitalized software development costs, net
|
|
|
326
|
|
|
|
366
|
|
Goodwill
|
|
|
1,083
|
|
|
|
1,083
|
|
Total assets
|
|
$
|
5,751
|
|
|
$
|
6,275
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Stockholders' Equity
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Note payable-revolving credit line
|
|
$
|
1,776
|
|
|
$
|
2,109
|
|
Accounts payable
|
|
|
737
|
|
|
|
880
|
|
Accrued liabilities
|
|
|
159
|
|
|
|
282
|
|
Convertible notes payable
|
|
|
—
|
|
|
|
600
|
|
Convertible notes payable related parties
|
|
|
80
|
|
|
|
108
|
|
Total current liabilities
|
|
|
2,752
|
|
|
|
3,979
|
|
|
|
|
|
|
|
|
|
|
Other liabilities
|
|
|
107
|
|
|
|
179
|
|
Total liabilities
|
|
|
2,859
|
|
|
|
4,158
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders' equity:
|
|
|
|
|
|
|
|
|
Authorized 5,000,000 Preferred Shares
|
|
|
|
|
|
|
|
|
Preferred stock series A, par value $.01 per share. Designated 1,300,000 shares;
Issued and outstanding shares nil at April 30, 2016 and 626,600 at April 30, 2015
|
|
|
—
|
|
|
|
1,857
|
|
Preferred stock series B, par value $12.20 per share. Designated 400,000 shares; Issued and outstanding shares 331,559 at April 30, 2016 and nil at April 30, 2015, (Liquidation value $4,045)
|
|
|
4,045
|
|
|
|
—
|
|
Common stock, par value $.001 per share
|
|
|
|
|
|
|
|
|
Authorized 54,000,000 common shares; par value $0.001, issued and outstanding 1,648,287 at April 30, 2016 and 925,337 at April 30, 2015
|
|
|
2
|
|
|
|
1
|
|
Additional paid-in capital
|
|
|
24,556
|
|
|
|
24,638
|
|
Shares to be issued
|
|
|
—
|
|
|
|
111
|
|
Accumulated deficit
|
|
|
(25,711
|
)
|
|
|
(24,490
|
)
|
Total stockholders' equity
|
|
|
2,892
|
|
|
|
2,117
|
|
Total liabilities and stockholder’s equity
|
|
$
|
5,751
|
|
|
$
|
6,275
|
|
See accompanying notes to consolidated financial statements.
DATARAM CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
Years ended April 30, 2016 and 2015
(In thousands, except share and per share amounts)
|
|
2016
|
|
|
2015
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
25,182
|
|
|
$
|
28,258
|
|
Costs and expenses:
|
|
|
|
|
|
|
|
|
Cost of sales
|
|
|
20,464
|
|
|
|
24,068
|
|
Engineering
|
|
|
191
|
|
|
|
768
|
|
Selling, general and administrative
|
|
|
5,767
|
|
|
|
6,171
|
|
|
|
|
26,422
|
|
|
|
31,007
|
|
Loss from operations
|
|
|
(1,240
|
)
|
|
|
(2,749
|
)
|
|
|
|
|
|
|
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
(199
|
)
|
|
|
(1,001
|
)
|
Foreign currency transactions gains (losses)
|
|
|
9
|
|
|
|
(76
|
)
|
Gain on debt extinguishment
|
|
|
22
|
|
|
|
—
|
|
Total other expenses, net
|
|
|
(168
|
)
|
|
|
(1,077
|
)
|
|
|
|
|
|
|
|
|
|
Loss before income taxes
|
|
|
(1,408
|
)
|
|
|
(3,826
|
)
|
|
|
|
|
|
|
|
|
|
Gain on sale of State NOL
|
|
|
190
|
|
|
|
—
|
|
Income tax expense
|
|
|
(3
|
)
|
|
|
(3
|
)
|
Total tax benefit (expense)
|
|
|
187
|
|
|
|
(3
|
)
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(1,221
|
)
|
|
$
|
(3,829
|
)
|
|
|
|
|
|
|
|
|
|
Dividend – Series A preferred stock
|
|
|
122
|
|
|
|
1,759
|
|
Net loss allocated to common shareholders
|
|
$
|
(1,343
|
)
|
|
$
|
(5,588
|
)
|
|
|
|
|
|
|
|
|
|
Net loss per common share:
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
$
|
(1.07
|
)
|
|
$
|
(6.60
|
)
|
Weighted average common shares outstanding
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
1,255,414
|
|
|
|
846,170
|
|
See accompanying notes to consolidated financial statements.
DATARAM CORPORATION AND SUBSIDIARIES
Consolidated Statements of Changes in Stockholders’
Equity
Years ended April 30, 2016 and 2015
(In thousands, except share amounts)
|
|
Preferred
Stock
Series A
|
|
|
Preferred
Stock
Series B
|
|
|
Common
Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares
|
|
|
Amount
|
|
|
Shares
|
|
|
Amount
|
|
|
Shares
|
|
|
Amount
|
|
|
Additional
Paid-in
Capital
|
|
|
Shares to
be issued
|
|
|
Accumulated
deficit
|
|
|
Total
Stockholders’
equity
|
|
Balance at May 1, 2014
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
803,504
|
|
|
$
|
1
|
|
|
$
|
22,645
|
|
|
|
—
|
|
|
$
|
(20,661
|
)
|
|
$
|
1,985
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(3,829
|
)
|
|
|
(3,829
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
14
|
|
|
|
—
|
|
|
|
—
|
|
|
|
14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value detachable warrants
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
562
|
|
|
|
—
|
|
|
|
—
|
|
|
|
562
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beneficial conversion feature of convertible notes payable
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
188
|
|
|
|
—
|
|
|
|
|
|
|
|
188
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common shares in connection with sales of preferred series A stock
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
60,833
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common shares for cash
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
61,000
|
|
|
|
—
|
|
|
|
366
|
|
|
|
—
|
|
|
|
—
|
|
|
|
366
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of Series A Preferred stock and warrants for cash
|
|
|
626,600
|
|
|
|
1,857
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
974
|
|
|
|
—
|
|
|
|
—
|
|
|
|
2,831
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash preferred stock divided
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(111
|
)
|
|
|
111
|
|
|
|
—
|
|
|
|
—
|
|
Balance at April 30, 2015
|
|
|
626,600
|
|
|
|
1,857
|
|
|
|
—
|
|
|
|
—
|
|
|
|
925,337
|
|
|
|
1
|
|
|
|
24,638
|
|
|
|
111
|
|
|
|
(24,490
|
)
|
|
|
2,117
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(1,221
|
)
|
|
|
(1,221
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
79,556
|
|
|
|
—
|
|
|
|
620
|
|
|
|
—
|
|
|
|
—
|
|
|
|
620
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common shares for cash
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
166,667
|
|
|
|
—
|
|
|
|
500
|
|
|
|
—
|
|
|
|
—
|
|
|
|
500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares surrendered
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(2,422
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares issued for service
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
112,000
|
|
|
|
—
|
|
|
|
126
|
|
|
|
—
|
|
|
|
—
|
|
|
|
126
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of Series A Preferred Stock and warrants for cash
|
|
|
20,000
|
|
|
|
80
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
20
|
|
|
|
—
|
|
|
|
—
|
|
|
|
100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Series A Preferred Stock converted to common shares
|
|
|
(123,300
|
)
|
|
|
(365
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
205,500
|
|
|
|
1
|
|
|
|
364
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash preferred series A stock dividend
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(122
|
)
|
|
|
122
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares issued for preferred series A stock dividend
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
46,413
|
|
|
|
—
|
|
|
|
233
|
|
|
|
(233
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exchange series A preferred stock for series B preferred stock
|
|
|
(523,300
|
)
|
|
|
(1,572
|
)
|
|
|
214,465
|
|
|
|
2,616
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(1,044
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exchange common and preferred series A warrants for series B preferred stock
|
|
|
—
|
|
|
|
—
|
|
|
|
66,136
|
|
|
|
807
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(807
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of series B preferred for extinguishment of convertible debt
|
|
|
—
|
|
|
|
—
|
|
|
|
55,083
|
|
|
|
672
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(22
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
650
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Conversion of series B preferred stock to restricted common shares
|
|
|
—
|
|
|
|
—
|
|
|
|
(4,125
|
)
|
|
|
(50
|
)
|
|
|
27,500
|
|
|
|
—
|
|
|
|
50
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted common shares issued in exchange of stock options
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
87,736
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Balance at April 30, 2016
|
|
|
—
|
|
|
$
|
—
|
|
|
|
331,559
|
|
|
$
|
4,045
|
|
|
|
1,648,287
|
|
|
$
|
2
|
|
|
$
|
24,556
|
|
|
$
|
—
|
|
|
$
|
(25,711
|
)
|
|
$
|
2,892
|
|
See accompanying notes to consolidated financial statements.
DATARAM CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
Years ended April 30, 2016 and 2015
(In thousands)
|
|
2016
|
|
|
2015
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(1,221
|
)
|
|
$
|
(3,829
|
)
|
Adjustments to reconcile net loss to net cash used in operating activities:
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
131
|
|
|
|
127
|
|
Bad debt expense
|
|
|
166
|
|
|
|
50
|
|
Stock-based compensation expense
|
|
|
746
|
|
|
|
14
|
|
Amortization of deferred gain in sale leaseback
|
|
|
(72
|
)
|
|
|
(71
|
)
|
Gain on debt extinguishment
|
|
|
(22
|
)
|
|
|
|
|
Amortization of debt discount
|
|
|
—
|
|
|
|
750
|
|
Changes in assets and liabilities
|
|
|
|
|
|
|
|
|
(Increase) decrease in accounts receivable
|
|
|
(741
|
)
|
|
|
1,442
|
|
Decrease in inventories
|
|
|
753
|
|
|
|
202
|
|
Increase in other current assets
|
|
|
(54
|
)
|
|
|
(62
|
)
|
Decrease in other assets
|
|
|
19
|
|
|
|
1
|
|
Decrease in accounts payable
|
|
|
(71
|
)
|
|
|
(558
|
)
|
Decrease in accrued liabilities
|
|
|
(123
|
)
|
|
|
(647
|
)
|
Net cash used in operating activities
|
|
|
(489
|
)
|
|
|
(2,581
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Additions to property and equipment
|
|
|
(21
|
)
|
|
|
(29
|
)
|
Software development costs
|
|
|
—
|
|
|
|
(365
|
)
|
Net cash used in investing activities
|
|
|
(21
|
)
|
|
|
(394
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Net repayments under revolving credit line
|
|
|
(333
|
)
|
|
|
(861
|
)
|
Proceeds from issuance of notes and warrants
|
|
|
—
|
|
|
|
750
|
|
Repayment of convertible notes
|
|
|
(28
|
)
|
|
|
(42
|
)
|
Proceeds from sales of preferred shares
|
|
|
100
|
|
|
|
2,832
|
|
Proceeds from sale of common stock
|
|
|
500
|
|
|
|
365
|
|
Net cash provided by financing activities
|
|
|
239
|
|
|
|
3,044
|
|
|
|
|
|
|
|
|
|
|
Net (decrease) increase in cash and cash equivalents
|
|
|
(271
|
)
|
|
|
69
|
|
Cash at beginning of the year
|
|
|
327
|
|
|
|
258
|
|
Cash at end of the year
|
|
$
|
56
|
|
|
$
|
327
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosures of cash flow information:
|
|
|
|
|
|
|
|
|
Cash paid in the period for :
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
199
|
|
|
$
|
251
|
|
Taxes
|
|
$
|
3
|
|
|
$
|
3
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosures of cash flow information:
|
|
|
|
|
|
|
|
|
Debt discount on convertible notes payable
|
|
$
|
—
|
|
|
$
|
750
|
|
Non-cash preferred stock dividends
|
|
$
|
122
|
|
|
$
|
1,759
|
|
Issuance of common stock for accrued dividend on Series A preferred stock
|
|
$
|
233
|
|
|
$
|
—
|
|
N Issuance of preferred B preferred stock for extinguishment of convertible
|
|
$
|
600
|
|
|
$
|
—
|
|
Exchange common warrant for series B preferred stock
|
|
$
|
807
|
|
|
$
|
—
|
|
Exchange of series A preferred stock for series B preferred stock
|
|
$
|
1,572
|
|
|
$
|
—
|
|
Exchange of B preferred stock for accrued interest
|
|
$
|
72
|
|
|
$
|
—
|
|
Conversion of series B preferred stock into common stock
|
|
$
|
50
|
|
|
$
|
—
|
|
Conversion of series A preferred stock into common stock
|
|
$
|
365
|
|
|
$
|
—
|
|
See accompanying notes to consolidated financial statements.
Dataram Corporation and Subsidiaries
Notes to Consolidated Financial Statements
Note 1. Organization and Nature of Business
Since 1967, Dataram Corporation
(“Dataram” or the “Company”) has been an independent manufacturer and reseller of memory products and provider
of performance solutions. The Company provides customized memory solutions for original equipment manufacturers (OEMs) and compatible
memory for leading brands including Cisco, Dell, Fujitsu, HP, IBM, Lenovo and Oracle as well as a line of memory products for Intel
and AMD motherboard based servers. Dataram manufactures its memory in-house to meet three key criteria - quality, compatibility,
and selection - and tests its memory for performance and original equipment manufacturer (OEM) compatibility as part of the production
process. With memory designed for over 50,000 systems and with products that range from energy-efficient DDR4 modules to
legacy SDR offerings. The Company is a CMTL Premier Participant and ISO 9001 (2008 Certified). Its products are fully compliant
with JEDEC Specifications.
Dataram’s customers include
an international network of distributors, resellers, retailers, OEM customers and end users.
Dataram competes with several other
large independent memory manufacturers and the OEMs noted above. The primary raw material used in producing memory boards
is dynamic random access memory (DRAM) chips. The purchase cost of DRAMs is the largest single component of the total cost of a
finished memory board. Consequently, average selling prices for computer memory boards are significantly dependent on the pricing
and availability of DRAM chips.
On July 6, 2016, the Company filed
a certificate of amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada in order to effectuate
a reverse stock split of the Company’s issued and outstanding common stock, par value $0.001 per share on a one (1) for three
(3) basis, effective on July 8, 2016 (the “Reverse Stock Split”). The accompanying consolidated financial statements
and notes thereto give retrospective effect of the Reverse Stock Split for all periods presented.
Note 2. Liquidity, Going Concern and Management
Plans
The Company's
consolidated financial statements are prepared using the accrual method of accounting in accordance with accounting principles
generally accepted in the United States of America (“U.S. GAAP”) and have been prepared assuming that the Company will
continue as a going concern, which contemplates the realization of assets and the settlement of liabilities in the normal course
of business. For the fiscal years ended April 30, 2016 and 2015, the Company incurred losses in the amounts of approximately $1,221,000
and $3,829,000, respectively.
The Company
raised approximately $600,000 from financing activities in the fiscal year 2016. (See note 3) The Company also exchanged notes
payable and accrued interest payable of approximately $672,000 for equity in fiscal 2016. (See note 4) While the Company has made
significant operational changes in the last year which has reduced its cash burn, there still remains substantial doubt about the
Company’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments relating
to the recoverability and classification of recorded assets, or the amounts of and classification of liabilities that might be
necessary in the event the Company cannot continue in existence.
If current
and projected revenue growth does not meet estimates, the Company may need to raise additional capital through debt and/or equity
transactions and reduce certain overhead costs. The Company cannot provide assurance that financing will close or be available
to it on favorable terms.
Note 3. Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation
The consolidated financial statements
have been prepared in conformity with accounting principles generally accepted in the United States of America (“U.S. GAAP”)
and include the accounts of the Company and its wholly-owned subsidiaries. All significant intercompany transactions and balances
have been eliminated in consolidation.
Cash Equivalents
The Company
did not have cash equivalents at the year ended April 30, 2016 or 2015.
Concentrations of Credit Risk
Financial instruments that potentially
subject the Company to concentrations of credit risk consist primarily of cash and accounts receivable. The Company maintains its
cash in financial institutions. To the extent that such deposits exceed the maximum insurance levels, they are uninsured. The Company
performs ongoing evaluations of its customers’ financial condition, as well as general economic conditions and, generally,
requires no collateral from its customers. At April 30, 2016 and 2015, amounts due from one customer totaled approximately 15%
and 16%, respectively, of accounts receivable.
In fiscal years ended April 30,
2016 the Company had sales to two customers that were over 10% of revenues. One customer totaled approximately 20% of revenues
and another customer totaled approximately 15% of revenues. In fiscal year ended April 30, 2015, the Company had sales to two customers
that were 10% of revenues or greater. One customer totaled approximately 20% of revenues and another customer totaled approximately
10% of revenues.
Accounts Receivable
Accounts receivable are stated
at cost less allowances for doubtful accounts which reflects the Company’s estimate of balances that will not be collected
and sales returns. The allowances are based on the history of past write-offs, and returns, the aging of balances, collections
experience and current credit conditions. Additions include provisions for doubtful accounts and deductions include customer write-offs.
Accounts receivable consist of the following:
|
|
April 30,
2016
|
|
|
April 30,
2015
|
|
Trade receivables
|
|
$
|
2,656,000
|
|
|
$
|
2,151,000
|
|
VAT receivable
|
|
|
190,000
|
|
|
|
160,000
|
|
Allowance for doubtful accounts and sales returns
|
|
|
(100,000
|
)
|
|
|
(140,000
|
)
|
|
|
$
|
2,746,000
|
|
|
$
|
2,171,000
|
|
I
nventories
Inventories are stated at the lower
of cost or market and include the cost of material, labor and manufacturing overhead. Cost is determined on the first-in, first-out
basis. The Company provides inventory allowances to write down inventory to its estimated net realizable value when conditions
indicate that the selling price could be less than cost due to physical deterioration, obsolescence, changes in price levels, or
other causes, which it includes as a component of cost of revenues. Additionally, the Company provides allowances for excess and
slow-moving inventory on hand that are not expected to be sold to reduce the carrying amount of slow-moving inventory to its estimated
net realizable value. The allowances for slow-moving inventory are based upon estimates about future demand from our customers
and market conditions.
Inventories consist of the following:
|
|
April 30,
2016
|
|
|
April 30,
2015
|
|
Raw materials
|
|
$
|
955,000
|
|
|
$
|
1,125,000
|
|
Work in progress
|
|
|
5,000
|
|
|
|
2,000
|
|
Finished goods
|
|
|
566,000
|
|
|
|
1,176,000
|
|
Allowance for excess and slow moving
|
|
|
(190,000
|
)
|
|
|
(214,000
|
)
|
|
|
$
|
1,336,000
|
|
|
$
|
2,089,000
|
|
Property and Equipment
Equipment consisting of office
furniture, computer, machinery and equipment is recorded at cost. Repairs and maintenance costs are expensed as incurred. Depreciation
for office furniture, computer, machinery and equipment is computed under the straight-line method over the estimated useful lives
which range from two to five years. Leasehold improvements are depreciated under the straight line method over their estimated
useful lives or the remaining lease period, whichever is shorter. When property or equipment is retired or otherwise disposed of,
related costs and accumulated depreciation and amortization are removed from the accounts. Depreciation and amortization expense
related to property and equipment for the fiscal years ended April 30, 2016 and 2015 totaled $92,000 and $127,000, respectively.
Repair and maintenance costs are charged to operations as incurred.
As of April 30, 2016 and 2015 fixed
assets and accumulated depreciation and amortization balances:
|
|
2016
|
|
|
2015
|
|
Equipment
|
|
$
|
502,000
|
|
|
$
|
480,000
|
|
Leasehold improvement
|
|
|
608,000
|
|
|
|
608,000
|
|
|
|
|
1,110,000
|
|
|
|
1,088,000
|
|
Less: Accumulated depreciation and amortization
|
|
|
(1,059,000
|
)
|
|
|
(967,000
|
)
|
|
|
|
|
|
|
|
|
|
Net property and equipment
|
|
$
|
51,000
|
|
|
$
|
121,000
|
|
Long-Lived Assets:
Long-lived assets, such as property
and equipment and capitalized software are reviewed for impairment whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of
the carrying amount of an asset to the estimated undiscounted future cash flows expected to be generated by the asset. If the carrying
amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying
amount of the asset exceeds the estimated fair value of the asset. Assets to be disposed of would be separately presented in the
consolidated balance sheets and reported at the lower of the carrying amount or fair value less cost to sell, and no longer depreciated.
The Company considers various valuation factors, principally undiscounted cash flows, to assess the fair values of long-lived assets.
Intangible Assets Capitalized Software
Software costs incurred in the
research, design and development of software for sale to others as a separate product or embedded in a product and sold as part
of the product as a whole are charged to expense until technological feasibility is established and amortized on a straight-line
basis over seven years, beginning when the products are offered for sale or the enhancements are integrated into the products.
Management is required to use its judgment in determining whether capitalized software costs meet the criteria for immediate expense
or capitalization, in accordance with U.S. GAAP. The unamortized capitalized costs of a computer software product are compared
to the net realizable value of that product and any excess is written off. The Company began to amortize the capitalized software
in the second quarter of the fiscal year ended April 30, 2016. In the fiscal year ended April 30, 2016 the company recorded approximately
$39,000 of amortization. The company will amortize the capitalized software on a straight line basis over the next nineteen quarters.
The Company’s proprietary
software solutions operate in a fast changing industry that may generate unknown methods of detecting and monitoring disturbances
that could render our technology inferior, resulting in the Company’s results of operations being materially adversely affected.
The Company does, however, closely monitor trends and changes in technologies and customer demand that could adversely impact its
competitiveness and overall success. It is reasonably possible that those estimates of anticipated future gross revenues, the remaining
estimated economic life of the product, or both will be reduced significantly in the near term due to competitive pressures. As
a result, the carrying amount of the capitalized software costs for the Company’s products may be reduced materially in the
near term. Costs incurred for product enhancements are charged to expense.
Goodwill
Goodwill represents the excess
of the purchase price over the estimated fair value of identifiable net assets acquired in an acquisition. Goodwill is not amortized
but rather is reviewed annually for impairment, or whenever events or circumstances indicate that the carrying value may not be
recoverable. The Company initially performs a qualitative assessment of goodwill which considers macro-economic conditions, industry
and market trends, and the current and projected financial performance of the reporting unit. No further analysis is required if
it is determined that there is a less than 50 percent likelihood that the carrying value is greater than the fair value. The Company
completed a quantitative assessment and determined that there was no impairment of goodwill as of April 30, 2016.
Fair Value of Financial Instruments:
U.S. GAAP requires disclosing the
fair value of financial instruments to the extent practicable for financial instruments which are recognized or unrecognized in
the balance sheet. The fair value of the financial instruments disclosed herein is not necessarily representative of the amount
that could be realized or settled, nor does the fair value amount consider the tax consequences of realization or settlement.
In assessing the fair value of
financial instruments, the Company uses a variety of methods and assumptions, which are based on estimates of market conditions
and risks existing at the time. For certain instruments, including cash, accounts receivable, accounts payable, and accrued expenses,
and debt the fair value was estimated that the carrying amount approximated fair value because of the short maturities of these
instruments. All debt is based on current rates at which the Company could borrow funds with similar remaining maturities and approximates
fair value.
Fair value measurements and disclosures
establish a hierarchy that prioritizes fair value measurements based on the type of inputs used for the various valuation techniques
(market approach, income approach and cost approach). The levels of hierarchy are described below:
|
•
|
Level 1: Observable inputs such as quoted market prices in active markets for identical assets or liabilities.
|
|
•
|
Level 2: Inputs other than quoted market prices that are observable for the asset or liability, either directly or indirectly; these include quoted prices for similar assets or liabilities in active markets, such as interest rates and yield curves that are observable at commonly-quoted intervals.
|
|
•
|
Level 3: Unobservable inputs that reflect the reporting entity’s own assumptions, as there is little, if any, related market activity.
|
The Company’s assessment
of the significance of a particular input to the fair value measurement requires judgment, and may affect the valuation of assets
and liabilities and their placement within the fair value hierarchy.
Revenue Recognition
Revenue is recognized when title
passes upon shipment of goods to customers. The Company’s revenue earning activities involve delivering or producing goods.
The following criteria are met before revenue is recognized: persuasive evidence of an arrangement exists, shipment has occurred,
selling price is fixed or determinable and collection is reasonably assured. The Company does experience a minimal level of sales
returns and allowances for which the Company accrues a reserve at the time of sale. Estimated warranty costs are accrued by management
upon product shipment based on an estimate of future warranty claims.
Engineering and Research and Development
Research and development costs
are expensed as incurred, including Company-sponsored research and development and costs of patents and other intellectual property
that have no alternative future use when acquired and in which we had an uncertainty of receiving future economic benefits.
Advertising
Advertising is expensed as incurred
and amounted to $43,000 and $89,000 in the fiscal years ended April 30, 2016 and 2015, respectively.
Income Taxes
The Company accounts for income
taxes by recording a deferred tax asset or liability for the recognition of future deductible or taxable amounts and operating
loss and tax credit carry forwards. Deferred tax expense or benefit is recognized as a result of timing differences between the
recognition of assets and liabilities for financial reporting and tax purposes during the year. Deferred tax assets and liabilities
are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are
expected to be recovered or settled. Deferred tax assets are recognized for deductible temporary differences and operating loss
and tax credit carry forwards. A valuation allowance is established, when necessary, to reduce that deferred tax asset if it is
more likely than not that the related tax benefits will not be realized.
The Company follows the guidance
of accounting for uncertainty in income taxes. This guidance did not result in a material adjustment to the Company’s liability
for unrecognized income tax benefits. As of April 30, 2016, the Company currently was not and is not engaged in an income tax examination
by any tax authority. The Company recognizes interest and penalties on unpaid taxes in its income tax expense. No interest or penalties
were recognized during the Company’s fiscal years ended April 30, 2016 and 2015. The Company files income tax returns in
the United States and in various states. The Company’s significant tax jurisdictions are the U.S. Federal, New Jersey, Pennsylvania
and California. The tax years subsequent to 2011 remain open to examination by the taxing authorities.
Net Income (Loss) Per Share
Basic
net income (loss) per share is calculated by dividing net income (loss) by the weighted average number of common shares outstanding
during the period. Diluted net income (loss) per share is calculated in a manner consistent with basic net income (loss) per share
except that the weighted average number of common shares outstanding also includes the dilutive effect of stock options outstanding
(using the treasury stock method).
Basic net loss per share is computed by dividing the
net loss available to common stock holders by the weighted average number of shares of common stock issued and outstanding during
the period. The calculation of diluted loss per share for the fiscal year ended April 30, 2016 and April 30, 2015 includes only
the weighted average number of shares of common stock outstanding. The denominator excludes the dilutive effect of common shares
issuable upon exercise or conversion of stock options, warrants, convertible notes and Series A and Series B preferred shares as
their effect would be anti-dilutive.
Anti-dilutive securities consisted of the following
at April 30:
|
|
2016
|
|
|
2015
|
|
Convertible notes
|
|
|
—
|
|
|
|
80,000
|
|
Convertible notes – related parties
|
|
|
9,070
|
|
|
|
17,007
|
|
Series A preferred shares
|
|
|
—
|
|
|
|
522,167
|
|
Series B preferred shares
|
|
|
2,210,390
|
|
|
|
—
|
|
Warrants
|
|
|
207,625
|
|
|
|
1,102,758
|
|
Common shares reserved for series A preferred share dividends
|
|
|
—
|
|
|
|
17,517
|
|
Stock options
|
|
|
—
|
|
|
|
41,915
|
|
Total
|
|
|
2,427,085
|
|
|
|
1,781,364
|
|
Product Warranty
The majority of the Company’s
products are intended for single use; therefore, the Company requires limited product warranty accruals. The Company accrues estimated
product warranty costs at the time of sale and any additional amounts are recorded when such costs are probable and can be reasonably
estimated, such amounts in fiscal year ended April 30, 2016 and 2015 were not material.
|
|
Balance
|
|
|
Charges to
|
|
|
|
|
|
Balance
|
|
|
|
Beginning
|
|
|
Costs and
|
|
|
|
|
|
End
|
|
|
|
of Year
|
|
|
Expenses
|
|
|
Deductions
|
|
|
of Year
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended April 30, 2016
|
|
$
|
10,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
10,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended April 30, 2015
|
|
$
|
69,000
|
|
|
$
|
11,000
|
|
|
$
|
(70,000
|
)
|
|
$
|
10,000
|
|
Use of Estimates
The preparation of financial statements
in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and
liabilities, and disclosure of contingent liabilities at the date of the financial statements, and the reported amounts of revenues
and expenses during the reporting period. Actual results could differ from those estimates. Estimates and assumptions are reviewed
periodically and the effects of revisions are reflected in the consolidated financial statements in the period they are determined
to be necessary. Some of the more significant estimates made by management include the allowance for doubtful accounts and sales
returns, inventory reserve, stock based compensation, deferred income tax asset valuation allowance and other operating allowances
and accruals.
Stock-Based Compensation – Stock options
The Company accounts for stock-based
awards issued to employees, officers and directors pursuant to ASC 718. Such awards primarily consist of options to purchase shares
of common stock. The fair value of stock-based awards is determined on the grant date using a valuation model. The fair value is
recognized as compensation expense, net of estimated forfeitures, on a straight line basis over the service period which is normally
the vesting period.
Recent Accounting Pronouncements
In May 2014, the FASB issued a
new financial accounting standard which outlines a single comprehensive model for entities to use in accounting for revenue arising
from contracts with customers and supersedes current revenue recognition guidance. The accounting standard is effective for annual
reporting periods (including interim reporting periods within those periods) beginning after December 15, 2017. Early adoption
is permitted as of annual reporting periods beginning after December 15, 2016, including interim reporting periods within that
reporting period. We are currently evaluating the impact of this accounting standard on our consolidated financial statements
In April 2015, the FASB issued
ASU No. 2015-03(ASU 2015-03), Interest — Imputation of Interest (Subtopic 835-30): Simplifying the Presentation of Debt
Issuance Costs. This standard amends the existing guidance to require that debt issuance costs be presented in the balance sheet
as a deduction from the carrying amount of the related debt liability instead of as a deferred charge. ASU 2015-03 is effective
on a retrospective basis for annual and interim reporting periods beginning after December 15, 2015, but early adoption is
permitted. The Company has early adopted this standard by classifying debt issuance cost as part of the debt and its impact on
its consolidated financial statements and related disclosures was immaterial statements and related disclosures was immaterial.
In May 2015 In May of 2015, the
FASB issued ASU 2015-07, Fair Value Measurement, to remove the requirement to categorize within the fair value hierarchy all investments
for which fair value is measured using the net asset value per share practical expedient. The amendments also remove the requirement
to make certain disclosures for all investments that are eligible to be measured at fair value using the net asset value per share
practical expedient. The ASU is effective for annual periods, and interim periods within those annual periods, beginning after
December 15, 2015. Early adoption is permitted. The adoption of this standard is not expected to have a material impact on
the Company’s consolidated financial position and results of operations.
In September 2015, the FASB issued
ASU No. 2015-16, “Business Combinations (Topic 805), Simplifying the Accounting for Measurement-Period Adjustments”.
The update requires that the acquirer in a business combination recognize adjustments to provisional amounts that are identified
during the measurement period in the reporting period in which the adjustment amounts are determined (not retrospectively as with
prior guidance). Additionally, the acquirer must record in the same period’s financial statements the effect on earnings
of changes in depreciation, amortization or other income effects as a result of the change to the provisional amounts, calculated
as if the accounting had been completed at the time of acquisition. The acquiring entity is required to disclose, on the face of
the financial statements or in the footnotes to the financial statements, the portion of the amount recorded in current period
earnings, by financial statement line item, that would have been recorded in previous reporting periods if the adjustment to the
provisional amounts had been recognized as of the acquisition date. The guidance in ASU No. 2015-16 is effective for fiscal
years beginning after December 15, 2015, including interim periods within those fiscal years. Earlier application is permitted
for financial statements that have not been issued. The adoption of this standard is not expected to have a material impact on
the Company’s consolidated financial position and results of operations.
In November 2015, the FASB has
issued ASU No. 2015-17, Income Taxes (Topic 740): Balance Sheet Classification of Deferred Taxes, which changes how deferred
taxes are classified on organizations’ balance sheets. The ASU eliminates the current requirement for organizations to present
deferred tax liabilities and assets as current and noncurrent in a classified balance sheet. Instead, organizations will be required
to classify all deferred tax assets and liabilities as noncurrent. The amendments apply to all organizations that present a classified
balance sheet. For public companies, the amendments are effective for financial statements issued for annual periods beginning
after December 15, 2016, and interim periods within those annual periods. For private companies, not-for-profit organizations,
and employee benefit plans, the amendments are effective for financial statements issued for annual periods beginning after December 15,
2017, and interim periods within annual periods beginning after December 15, 2018. The adoption of this standard is not expected
to have a material impact on the Company’s consolidated financial position and results of operations.
The FASB issued ASU 2016-02, Leases
(Topic 842). ASU 2016-02 requires that a lessee recognize the assets and liabilities that arise from operating leases. A lessee
should recognize in the statement of financial position a liability to make lease payments (the lease liability) and a right-of-use
asset representing its right to use the underlying asset for the lease term. For leases with a term of 12 months or less, a lessee
is permitted to make an accounting policy election by class of underlying asset not to recognize lease assets and lease liabilities.
In transition, lessees and lessors are required to recognize and measure leases at the beginning of the earliest period presented
using a modified retrospective approach. Public business entities should apply the amendments in ASU 2016-02 for fiscal years beginning
after December 15, 2018, including interim periods within those fiscal years (i.e., January 1, 2019, for a calendar year entity).
Early application is permitted for all public business entities and all nonpublic business entities upon issuance. The adoption
of this standard is not expected to have a material impact on the Company’s consolidated financial position and results of
operations.
In March 2016, the FASB issued
ASU No. 2016-09 (“ASU 2016-09”), “Compensation—Stock Compensation (Topic 718): Improvements to Employee
Share-Based Payment Accounting.” ASU 2016-09 will affect all entities that issue share-based payment awards to their employees
and is effective for annual periods beginning after December 15, 2016 for public entities. The areas for simplification in ASU
2016-09 involve several aspects of the accounting for share-based payment transactions, including the income tax consequences,
classification of awards as either equity or liabilities, and classification on the statement of cash flows. The Company is currently
evaluating the effect that ASU 2016-09 will have on the Company’s consolidated financial position and results of operations.
In April 2016, the FASB issued
ASU No. 2016-10 (“ASU 2016-10”), “Revenue from Contracts with Customers (Topic 606): Identifying Performance
Obligations and Licensing.” ASU 2016-10 will affect all entities that enter into contracts with customers to transfer goods
or services (that are an output of the entity’s ordinary activities) in exchange for consideration. The amendments
in this update affect the guidance in ASU 2014-09 which is not yet effective, the amendments in this update clarify the following
two aspects of Topic 606: identifying performance obligations and the licensing implementation guidance, while retaining the related
principles for those areas. The effective date and transition requirements for the amendments in this update are the same as the
effective date and transition requirements for ASU 2014-09. The Company is currently evaluating the effect that ASU 2016-10 will
have on the Company’s consolidated financial position and results of operations.
In May 2016, the FASB issued ASU
No. 2016-12 (“ASU 2016-12”), “Revenue from Contracts with Customers (Topic 606): Narrow-Scope Improvements and
Practical Expedients.” ASU 2016-12 will affect all entities that enter into contracts with customers to transfer goods or
services (that are an output of the entity’s ordinary activities) in exchange for consideration. The amendments in
this update affect the guidance in ASU 2014-09 which is not yet effective, the amendments in this update affect narrow aspects
of Topic 606 including among others: assessing collectability criterion, noncash consideration, and presentation of sales taxes
and other similar taxes collected from customers. The effective date and transition requirements for the amendments in this update
are the same as the effective date and transition requirements for ASU 2014-09. The Company is currently evaluating the effect
that ASU 2016-12 will have on the Company’s consolidated financial position and results of operations.
Note 4. Financing Agreements
As of October 31, 2013, the Company
entered into an agreement with David Sheerr, a related party, to leaseback the equipment and furniture that was sold to Mr. Sheerr
on October 31, 2013. The lease is for a term of 60 months and the Company is obligated to pay approximately $7,500 per month for
the term of the lease. The Company has an option to extend the lease for an additional two year period. The transactions described
have been accounted for as a sale-leaseback transaction. Accordingly, the Company recognized a gain on the sale of assets of approximately
$139,000, which is the amount of the gain on sale in excess of present value of the future lease payments and will recognize the
remaining approximately $322,000 in proportion to the related gross rental charged to expense over the term of the lease, 60 months.
The current portion of $72,000 deferred gain is reflected in accrued liabilities and the long term portion of $179,000 is reflected
in other liabilities long term in the consolidated balance sheet as of April 30, 2015. The current portion of $72,000 deferred
gain is reflected in accrued liabilities and the long term portion of $107,000 is reflected in other liabilities long term in the
consolidated balance sheet as of April 30, 2016.
The Company has entered into a
financing agreement (the “Financing Agreement”) with Rosenthal & Rosenthal, Inc. The Financing Agreement provides
for a revolving loan with a maximum borrowing capacity of $3,500,000. The loans under the Financing Agreement mature on November
30, 2016 unless such Financing Agreement is either earlier terminated or renewed. Loans outstanding under the Financing Agreement
bear interest at a rate of the Prime Rate (as defined in the Financing Agreement) plus 3.25% (the “Effective Rate”)
or on Over-advances (as defined in the Financing Agreement), if any, at a rate of the Effective Rate plus 3%. The Financing Agreement
contains other financial and restrictive covenants, including, among others, covenants limiting our ability to incur indebtedness,
guarantee obligations, sell assets, make loans, enter into mergers and acquisition transactions and declare or make dividends.
Borrowings under the Financing Agreement are collateralized by substantially all the assets of the Company. On April 29, 2014,
the Company entered into an amendment (the "Amendment") to the Financing Agreement. The Amendment provides for advances
against inventory balances based on prescribed formulas of raw materials and finished goods. The maximum borrowing capacity remains
at $3,500,000. Borrowings at April 30, 2016 and April 30, 2015 totaled approximately $1,776,000 and $2,109,000 respectively there
is no additional availability as of April 30, 2016.
The weighted average interest rate
on amounts borrowed under these agreements at April 30, 2016 and 2015 was 8.5% and 8.5%, respectively. The average dollar amounts
borrowed under these agreements for the fiscal years ended April 30, 2016 and 2015 were approximately $2,348,000 and $3,091,000,
respectively.
Note 5. Securities Purchase Agreement
Bridge Notes and Bridge Warrants
On July 15, 2014, the Company entered
into the purchase agreement governing the issuance of $750,000 aggregate principal amount of Bridge Notes and Bridge Warrants.
The Bridge Notes and Bridge Warrants were issued on July 15, 2014. The Company issued $600,000 aggregate principal amount
of the Bridge Notes to certain institutional investors and $150,000 aggregate principal amount of the Bridge Notes to certain members
of management. The initial conversion price for institutional investors was $7.50 per share (which was subsequently reduced; see
below), and the initial conversion price for management was equal to the closing price of the Company’s common stock on the
closing date of the Purchase Agreement, $8.82. The Bridge Notes were secured obligations of the Company and bear interest at a
rate of 8% per year. The Bridge Warrants are exercisable for five years after the closing date of the Purchase Agreement, or July
15, 2019. For each $1,000 of principal amount of Bridge Notes, the holder received 1,200 Bridge Warrants, each exercisable for
the purchase of one share of the Company’s common stock. Each holder is entitled to exercise one-third of all Bridge Warrants
received at an exercise price of $9.00, one-third of all Bridge Warrants received at an exercise price of $10.50, and one-third
of all Bridge Warrants received at an exercise price that is equal to the closing price on the closing date of the Purchase Agreement,
$8.82.
As noted below, (Note 6) on January
15, 2016 the Company entered into an agreement with the institutional bridge note holders and certain members of management who
held warrants issued with the above Convertible Notes Payable whereby the warrants would be exchanged for shares of Series B Preferred
Stock. 255,000 of the outstanding warrants were exchanged for 19,125 shares of Series B Preferred Stock. The exchange was accounted
for as an equity-for-equity exchange, with no gain or loss recorded. The issuance date value of the exchanged warrants of $233,300
was reallocated to Series B Preferred Stock and Additional Paid in Capital.
On November 17, 2014 the Company
closed the sale of 600,000 shares of its Series A Stock, which resulted in the reduction of the conversion price of the Bridge
Notes held by the institutional investors to $6.00 from $7.50, to equal the conversion price of the Series A Preferred Stock
On January 15, 2016 the Company
entered into an agreement with the institutional bridge note holders to exchange their entire balance (principal and accrued and
unpaid interest) of Bridge Notes originally issued on July 14, 2014 through the issuance of 55,083 shares of Series B Preferred
Stock, having a value of $649,967. The carrying value of principal and accrued interest extinguished was $672,000 resulting in
a gain on extinguishment of $22,033 (see note 6).
The pricing model the Company used
for determining fair values of the Bridge Warrants is the Black-Scholes Pricing Model. The model uses market-sourced inputs such
as interest rates, dividend yields, market prices and volatilities. The risk-free interest rate used of 1.26% is based on the rate
of U.S Treasury zero-coupon issues with a remaining term equal to the expected life of the Bridge Warrants. Expected dividend yield
assumes the current dividend rate of zero. Expected volatility of approximately 100% was calculated using the daily closing price
over a five-year period of the Company’s Common Stock.
The value of the Bridge Warrants
was derived and used as a basis to allocate the proceeds received between the Bridge Warrants and Bridge Notes. The proportionate
value ascribed to the Bridge Warrants amounted to approximately $562,000 and was reflected as a discount on notes payable. Further
the Company estimated a value of beneficial conversion feature of approximately $188,000 (limited to the amount of proceeds allocated
to the notes payable) and reflected such as an additional discount on the bridge notes. The discount on notes payable has been
fully amortized using straight line amortization. This resulted in a non-cash interest charge of approximately $750,000 in the
fiscal year ended April 30, 2015.
Series A preferred shares
On November 12, 2014, the Company
completed a private placement of 600,000 shares of its Series A Preferred Stock (“Series A Stock”) together with Warrants
to purchase shares of its common stock (“Preferred Warrant”) at a price of $5.00 per share, in accordance with the
Series A Preferred Stock Purchase Agreement dated October 20, 2014 (the “Purchase Agreement”). The net proceeds to
the Company from the sale of the Series A Stock and Preferred Warrant, after deducting the estimated offering expenses incurred
by the Company were approximately $2,700,000. At any time from November 17, 2014, the date of Closing, and prior to October 20,
2019 (the “Put/Call Exercise Period”), the investors may exercise a right to purchase and require the Company to sell
up to an additional 700,000 shares of Series A Stock. If the investors have not exercised this right during the Put/Call Exercise
Period, the Company may exercise a right to cause and require the investors to purchase up to an additional 700,000 shares of Series
A Stock, for an aggregate purchase price of $3,500,000. Holders of the Series A Stock shall initially have the right to convert
such shares of Series A Stock into the number of authorized but previously unissued shares of the Company’s common stock
obtained by dividing the stated value of each share of Series A ($5.00) by $6.00. For each share of Series A Stock, the investors
will receive 2.5 Preferred Warrants to purchase the Company’s common stock at an exercise price of $7.50 per share. The Preferred
Warrants are exercisable immediately for a period of five years from the date of closing. The exercise price of the Preferred Warrants
is subject to adjustments in the case of stock splits, stock dividends, combinations of shares and similar recapitalization transactions.
The exercisability of the Preferred Warrants may be limited if upon exercise, the warrant holder or any of its affiliates would
beneficially own more than 4.99% of the Company’s Common Stock. The Holders of the Series A Stock will receive preferential
cumulative dividends at the rate of 8% per annum (equivalent to a fixed annual payment of $0.40 per share). The dividends are payable
in shares of common stock and shall be valued at the weighted average price of the Company’s common stock over the ten (10)
consecutive trading days ended on the second trading day immediately before the payment date.
The Company also issued 60,833
common shares and 30,000 warrants for common shares in exchange for professional services and fees related to the sale of the Series
A Stock. The fair value of the warrants is recorded as a simultaneous increase and decrease to additional paid in capital and is
therefore not presented on the consolidated statement of stockholders’ equity. The fair value of the common shares is presented
as a charge to Additional Paid in Capital (“APIC”), with a corresponding increase to common stock related to the par
value of the shares issued. The proceeds from the private placement were allocated between the Series A Stock, warrants and the
put/call feature based upon their relative fair values. The fair value of the preferred stock was determined utilizing the ‘as
converted’ method as the prominent feature driving the value of the instrument was deemed to be underlying value of the common
stock to which the instrument was convertible into.
Fair value of the warrants was
determined using the Black-Scholes Pricing Model. The model uses market-sourced inputs such as interest rates, dividend yields,
market prices and volatilities. The risk-free interest rate used of 1.64% is based on the rate of U.S Treasury zero-coupon issues
with a remaining term equal to the expected life of the Warrants. Expected dividend yield assumes the current dividend rate of
zero. Expected volatility of approximately 93% was calculated using the daily closing price over a five year period of the Company’s
Common Stock, the warrants have a strike price of $7.50.
Fair value of the put and call was determined using
the Black-Scholes Pricing Model. The model uses market-sourced inputs such as interest rates, dividend yields, market prices and
volatilities. The risk-free interest rate used of 1.64% is based on the rate of U.S Treasury zero-coupon issues with a remaining
term equal to the expected life of the Put/Call. Expected dividend yield assumes the contracted rate of 8%. Expected volatility
of approximately 93% was calculated using the daily closing price over a five year period of the Company’s Common Stock.
On February 2, 2015, the Company completed a private
placement of 26,600 shares of its Series A Stock together with Preferred Warrants to purchase shares of its common stock at a price
of $5.00 per share, in accordance with the Purchase Agreement. The net proceeds to the Company from the sale of the Series A Stock
and Preferred Warrant were approximately $133,000. The proceeds from the private placement were allocated between the Series A
Stock and the warrants based upon their relative fair values. The fair value of the preferred stock was determined utilizing the
‘as converted’ method as the prominent feature driving the value of the instrument was deemed to be underlying value
of the common stock to which the instrument was convertible into.
Fair value of the warrants was
determined using the Black-Scholes Pricing Model. The model uses market-sourced inputs such as interest rates, dividend yields,
market prices and volatilities. The risk-free interest rate used of 1.19% is based on the rate of U.S Treasury zero-coupon issues
with a remaining term equal to the expected life of the Warrants. Expected dividend yield assumes the current dividend rate of
zero. Expected volatility of approximately 90.5% was calculated using the daily closing price over a five year period of the Company’s
Common Stock. The warrants have a strike price of $7.50 and are exercisable for a period of 5 years.
In accordance with the Series A
Purchase Stock Purchase Agreement, on October 30, 2015, investors in the Series A Preferred Stock exercised a right to purchase
20,000 shares of Series A Preferred Stock and warrants; gross proceeds of the transaction was $100,000.
In fiscal year ended April 30,
2016, holders of Series A Preferred Stock converted 123,300 Series A Preferred shares into 205,500 of Common Stock. The converted
value for each Series A Preferred Share is approximately $2.96 which resulted in approximately $365,000 reduction to the Series
A Preferred Stock and a $365,000 offsetting increase to Additional Paid in Capital in the April 30, 2016 consolidated balance sheet.
Dividends recorded in the year
ended April 30, 2016 and April 30, 2015 were approximately $122,000 and $111,000 respectively. The Board of Directors authorized
accumulated dividends from the date of Series A Preferred Stock issuance to be paid in the form of Common Stock. This resulted
in the issuance of 46,413 Common Shares and a reduction of accumulated dividends of approximately $233,000 and offsetting increase
of approximately $233,000 in Additional Paid in Capital in the accompanying condensed balance sheet. The preferential cumulative
dividends accrued at the rate of 8% per annum. The dividends payable were paid in shares of common stock and were valued at the
volume weighted average price of the Company’s common stock over the ten (10) consecutive trading days ended on the second
trading day immediately before the dividend payment date.
Series B preferred shares
During the fiscal year ended April
30, 2016, the holders of Series B Preferred Stock converted 4,125 Series B Preferred shares into 27,500 shares of Common Stock.
The converted value for each Series B Preferred Share is approximately $12.20 or $50,325 and resulted in an offsetting increase
to Additional Paid in Capital in the April 30, 2016 consolidated balance sheet.
Common Stock
On February 2, 2015, the Company
issued and sold an aggregate of 61,000 restricted shares of its common stock at a price of $6.00 per share and five-year warrants
to purchase an additional 105,333 shares with an exercise price of $7.50 per share, of which 16,667 shares were purchased by David
A Moylan the Company’s CEO. The net proceeds to the Company from the sale of the restricted common stock and warrants (exclusive
of any exercise thereof) were approximately $365,000.
Fair value of the warrants was
determined using the Black-Scholes Pricing Model. The model uses market-sourced inputs such as interest rates, dividend yields,
market prices and volatilities. The risk-free interest rate used of 1.19% is based on the rate of U.S Treasury zero-coupon issues
with a remaining term equal to the expected life of the Warrants. Expected dividend yield assumes the current dividend rate of
zero. Expected volatility of approximately 90.5% was calculated using the daily closing price over a five year period of the Company’s
Common Stock. The warrants have a strike price of $7.50 and are exercisable for a period of 5 years. The warrants have been recognized
through a simultaneous increase and decrease to APIC for approximately $215,000 and therefore not presented on the consolidated
statement of stockholders’ equity.
On July 31, 2015, the Company entered
into separate securities purchase agreements with five (5) accredited investors for the issuance and sale of an aggregate of 166,667
shares of its common stock at a per share price of $3.00 or an aggregate purchase price of approximately $500,000.
Note 6. Equity Exchange transactions
On January 15, 2016, Dataram Corporation
entered into separate exchange agreements with holders of:
|
(i)
|
the Company’s outstanding shares of Series A Preferred Stock and Series A Warrants to purchase
shares of the Company’s Common Stock issued in connection with the Series A Preferred Stock originally issued on November
17, 2014, February 2, 2015 and October 30, 2015, and
|
|
(ii)
|
the Company’s outstanding institutionally held subordinated secured convertible Bridge Notes
and Bridge Warrants held by institutions and employee investors to purchase shares of Common Stock issued in connection with the
sale of the Bridge Notes on July 15, 2014 pursuant to Subordinated Secured Convertible Bridge Note and Warrant Purchase Agreements
(the “Bridge Purchase Agreements”), and
|
|
(iii)
|
warrants to purchase Common Stock issued pursuant to the Company’s prospectus supplement
dated September 18, 2013 (the “Registered Warrants” and together with the Series A Preferred Stock, the Series A Warrants,
Bridge Notes and the Bridge Warrants, the “Exchange Securities”).
|
Pursuant to the Exchange Agreements,
the Holders exchanged the Exchange Securities for an aggregate of 335,684 shares of the Company’s newly designated Series
B Convertible Preferred Stock (the “Preferred Stock”).
As noted in (i) above the Company
entered into an agreement with investors who held Preferred Series A Preferred Stock and warrants issued with the series A preferred
stock. The 523,300 outstanding Series A shares were exchanged for 214,465 Series B Preferred Stock. The exchange was accounted
for as an equity-for-equity exchange, with no gain or loss recorded. The issuance date value of the exchanged Preferred Series
A Stock of approximately, $1,572,000 was reallocated to Series B Preferred Stock and Additional Paid in Capital. Additionally,
the 1,616,500 outstanding Preferred Series A warrants were exchanged for 40,413 shares of Series B Preferred Stock. The exchange
was accounted for as an equity-for-equity exchange, with no gain or loss recorded. The issuance date value of the exchanged warrants
of $493,060 was reallocated to Series B Preferred Stock and Additional Paid in Capital.
As noted in (ii) above the Company
entered into an agreement with the institutional bridge note holders and certain members of management who held warrants issued
with the above Convertible Notes Payable whereby the warrants would be exchanged for shares of Series B Preferred Stock. 255,000
of the outstanding warrants were exchanged for 19,125 shares of Series B Preferred Stock. The exchange was accounted for as an
equity-for-equity exchange, with no gain or loss recorded. The issuance date value of the exchanged warrants of $233,300 was reallocated
to Series B Preferred Stock and Additional Paid in Capital.
As noted in (iii) above the Company
entered into an agreement with investors who held warrants issued with the above Common Stock issue dated September 18, 2013. The
87,967 outstanding warrants were exchanged for 6,598 shares of Series B Preferred Stock. The exchange was accounted for as an equity-for-equity
exchange, with no gain or loss recorded. The issuance date value of the exchanged warrants of $80,500 was reallocated to Series
B Preferred Stock and Additional Paid in Capital.
As contemplated by the Exchange
Agreements and as approved by the Company’s Board of Directors on January 21, 2016, the Company filed with the Secretary
of State of the State of Nevada, a Certificate of Designation of Preferences, Rights and Limitations of 0% Series B Convertible
Preferred Stock (the “Series B Certificate of Designations”). Pursuant to the Series B Certificate of Designations,
the Company designated 400,000 shares of its blank check preferred stock as Series B Preferred Stock. Each share of Series B Preferred
Stock has a stated value of $12.20 per share. In the event of a liquidation, dissolution or winding up of the Company, each share
of Series B Preferred Stock will be entitled to a per share preferential payment equal to the par value. All shares of capital
stock of the Company will be junior in rank to Series B Preferred Stock with respect to the preferences as to dividends, distributions
and payments upon the liquidation, dissolution and winding-up of the Company. The Holders will be entitled to receive dividends
if and when declared by the Company’s Board of Directors. In addition, the Series B Preferred Stock shall participate on
an “as converted” basis, with all dividends declared on the common stock.
Subject to certain limitations
as set forth below, each holder may convert the shares of Series B Preferred Stock into such number of shares of common stock based
on a conversion ratio, the numerator of which shall be the Base Amount (defined hereafter) and denominator of which shall be the
Conversion Price (defined hereafter). “Base Amount” is defined, as of the applicable date of determination, the sum
of (1) the aggregate stated value of the Series B Preferred Stock to be converted, plus (2) the accrued and unpaid dividends on
Series B Preferred Stock. The “Conversion Price” of the Series B Preferred Stock is initially $1.83.
The Company is prohibited from
effecting the conversion of Series B Preferred Stock to the extent that, as a result of such conversion, the holder would beneficially
own more than 4.99%, in the aggregate, of the issued and outstanding shares of the Company’s common stock calculated immediately
after giving effect to the issuance of shares of Common Stock upon the conversion of the Series B Preferred Stock (the “Maximum
Percentage”). A holder may increase or decrease the Maximum Percentage by providing written notice to the Company; provided,
that in no event shall the Maximum Percentage exceed 9.99%. If and until it is determined that the Company is required to obtain
the approval of its shareholders for the issuance of the Series B Preferred Stock in accordance with NASDAQ Capital Market Rules
(“Shareholder Approval”, then the Company, until it has obtained Shareholder Approval, may not issue upon conversion
of the Series B Preferred Stock, such number of shares of Common Stock, which, when aggregated with all other shares of Common
Stock issued upon conversion of all Series B Preferred Stock, would exceed 19.99% of the shares of Common Stock issued and outstanding
as of the initial issuance date of the Series B Preferred Stock.
On April 30, 2016 the Company has
1,648,287 shares of common stock issued and outstanding and 331,559 shares of Series B Preferred Stock outstanding convertible
into an aggregate of 2,210,390 shares of Common Stock, without giving effect to any Beneficial Ownership Limitation or Exchange
Blocker.
Note 7. Related Party Transactions
During the fiscal years ended April
30, 2016 and 2015, the Company purchased inventories for resale totaling approximately $381,000 and $1,348,000, respectively, from
Sheerr Memory, LLC (“Sheerr Memory”). Sheerr Memory’s owner (“Mr. Sheerr”) is employed by the Company
as an advisor. Approximately $11,000 and $15,000 of accounts payable in the Company’s consolidated balance sheets as of April
30, 2016 and April 30, 2015, respectively, is payable to Sheerr Memory. Sheerr Memory offers the Company trade terms of net 30
days and all invoices are settled in the normal course of business. No interest is paid. The Company has made approximately $19,000
in purchases from Sheerr Memory subsequent to April 30, 2016 and management anticipates that the Company will continue to do so,
although the Company has no obligation to do so.
During the fiscal years ended April
30, 2016 and 2015, the Company purchased inventories for resale totaling approximately $1,181,000 and $1,150,000, respectively,
from Keystone Memory Group (“Keystone Memory”). Keystone Memory’s owner is a relative of Mr. Sheerr. Approximately
$190,000 of accounts payable in the Company’s consolidated balance sheets as of April 30, 2016 is payable to Keystone Memory.
At April 30, 2015 approximately $32,000 of accounts payable was due Keystone Memory. Keystone Memory offers the Company trade terms
of immediately due and all invoices are settled in the normal course of business. No interest is paid. The Company has made approximately
$290,000 in purchases from Keystone Memory subsequent to April 30, 2016 and management anticipates that the Company will continue
to do so, although the Company has no obligation to do so.
On October 31, 2013, the Company
entered into an agreement with Mr. Sheerr to leaseback the equipment and furniture that was sold to Mr. Sheerr on October 31, 2013
for $500,000. The lease is for a term of 60 months and the Company is obligated to pay approximately $7,500 per month for the term
of the lease. The Company has an option to extend the lease for an additional two year period. The transactions described have
been accounted for as a sale-leaseback transaction. Accordingly, the Company recognized a gain on the sale of assets of approximately
$103,000, which is the amount of the gain on sale in excess of present value of the future lease payments and will recognize the
remaining deferred gain of approximately $358,000 in proportion to the related gross rental charged to expense over the term of
the lease, 60 months. The current portion of $72,000 deferred gain was reflected in accrued liabilities and the long-term portion
of $179,000 is reflected in other liabilities – long-term in the condensed consolidated balance sheet as of April 30, 2015.
As of April 30, 2016, the current portion of $72,000 deferred gain is reflected in accrued liabilities and the long-term portion
of $107,000 is reflected in other liabilities – long-term in the consolidated balance sheet as of April 30, 2016.
Note 8. Income Taxes
Income tax expense for the years
ended April 30 consists of the following:
|
|
2016
|
|
|
2015
|
|
Current:
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
—
|
|
|
$
|
—
|
|
State
|
|
|
(187,000
|
)
|
|
|
3,000
|
|
|
|
|
(187,000
|
)
|
|
|
3,000
|
|
Deferred:
|
|
|
|
|
|
|
|
|
Federal
|
|
|
—
|
|
|
|
—
|
|
State
|
|
|
—
|
|
|
|
—
|
|
|
|
|
—
|
|
|
|
—
|
|
Total income tax expense
|
|
$
|
(187,000
|
)
|
|
$
|
3,000
|
|
The Company’s income tax
expense for the fiscal year ended April 30, 2016 include a gain recorded on the sale of state net operating losses of approximately
$190,000 and tax expense of approximately $3,000 that consists of state minimum tax payments. For the fiscal year ended April 30,
2015 tax expense of approximately $3,000 that consists of state minimum tax payments.
Income tax expense differs from
“expected” tax expense (computed by applying the applicable U.S. statutory Federal income tax rate to earnings before
income taxes) as follows:
|
|
2016
|
|
|
2015
|
|
|
|
|
|
|
|
|
Federal income tax at statutory rates
|
|
$
|
(479,000
|
)
|
|
$
|
(1,301,000
|
)
|
State income taxes (net of federal income tax benefit)
|
|
|
81,000
|
|
|
|
(28,000
|
)
|
Impact of change in state rate
|
|
|
(69,000
|
)
|
|
|
|
|
Other
|
|
|
(46,000
|
)
|
|
|
257,000
|
|
|
|
|
|
|
|
|
|
|
Total income tax expense (benefit) before provision for valuation allowance
|
|
|
(513,000
|
)
|
|
|
(1,072,000
|
)
|
Changes in valuation allowance
|
|
|
326,000
|
|
|
|
1,075,000
|
|
Total income tax expense
|
|
$
|
(187,000
|
)
|
|
$
|
3,000
|
|
The tax effect of temporary differences
that give rise to significant portions of the deferred tax assets and deferred tax liabilities are presented below:
|
|
2016
|
|
|
2015
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
Compensated absences and severance, principally due to accruals for financial reporting purposes
|
|
$
|
3,000
|
|
|
$
|
3,000
|
|
Stock-based compensation expense
|
|
|
1,438,000
|
|
|
|
1,151,000
|
|
Accounts receivable, principally due to allowance for doubtful accounts and sales returns
|
|
|
36,000
|
|
|
|
49,000
|
|
Property and equipment, principally due to differences in depreciation
|
|
|
208,000
|
|
|
|
216,000
|
|
Intangible assets
|
|
|
3,000
|
|
|
|
53,000
|
|
Inventories
|
|
|
104,000
|
|
|
|
54,000
|
|
Net operating losses
|
|
|
10,691,000
|
|
|
|
10,609,000
|
|
Alternative minimum tax
|
|
|
438,000
|
|
|
|
438,000
|
|
Capitalized R & D cost
|
|
|
116,000
|
|
|
|
128,000
|
|
Other
|
|
|
13,000
|
|
|
|
23,000
|
|
Net deferred tax assets
|
|
|
13,050,000
|
|
|
|
12,724,000
|
|
|
|
|
|
|
|
|
|
|
Valuation allowance
|
|
|
(13,050,000
|
)
|
|
|
(12,724,000
|
)
|
|
|
|
|
|
|
|
|
|
Net deferred tax assets
|
|
$
|
—
|
|
|
$
|
—
|
|
The valuation allowance increased
by $326,000 and $1,075,000 for the fiscal years ended April 30, 2016 and 2015, respectively. Management believes sufficient uncertainty
exists regarding the realization of the deferred tax asset items and that a valuation allowance is required. Management considers
projected future taxable income and tax planning strategies in making this assessment. The amount of deferred tax assets considered
realizable could materially change in the future if estimates of future taxable income change.
The Company has Federal and state
net operating loss carry-forwards of approximately $30,400,000 and $7,900,000, respectively. These can be used to offset future
taxable income and expire between 2023 and 2036 for Federal tax purposes and 2016 and 2036 for state tax purposes.
Note 9. Stock-based compensation
Option Plans
The Company had a 2001
incentive and non-statutory stock option plan for the purpose of permitting certain key employees to acquire equity in the Company
and to promote the growth and profitability of the Company by attracting and retaining key employees. In general, the plan allows
granting of up to 100,000 shares of the Company’s Common Stock at an option price to be no less than the fair market value
of the Company’s Common Stock on the date such options are granted. Currently, options granted under the plan vest ratably
on the annual anniversary date of the grants. Vesting periods for options currently granted under the plan ranged from one to five
years. No further options may be granted under this plan. The Company also has a 2011 incentive and non-statutory stock option
plan for the purpose of permitting certain key employees and consultants to acquire equity in the Company and to promote the growth
and profitability of the Company by attracting and retaining key employees. No executive officer or director of the Company is
eligible to receive options under the 2011 plan. In general, the plan allows granting of up to 11,111 shares of the Company’s
Common Stock at an option price to be no less than the fair market value of the Company’s Common Stock on the date such options
are granted. Options granted under the plan vest ratably on the annual anniversary date of the grants. All shares have been granted
under this plan.
The Company has a 2014
Equity Incentive Plan (the “Plan”), and reserves under the plan for issuance 83,333 shares of common stock. There are
approximately 14,333 shares available for future grant.
The Board of Directors
has exclusive authority to determine which officers, employees, and directors who provide services to the Company will be entitled
to receive a benefit under the Plan and to administer awards under the Plan to those eligible individuals. The Board retains the
authority to appoint a Compensation Committee at any time, consisting of one or more Board members, to determine awards under the
Plan. The Compensation Committee will determine, among things, the selection of those individuals to be granted awards under the
Plan among those individuals eligible for participation, the level of participation of each participant, when and how each award
under the plan will be granted, and what type or combination of types of awards will be granted.
The Plan provides for
the granting of qualified and non-qualified stock options Incentive stock options may be granted only to participants who meet
the definition of “employees” under Section 3401(c) of the Code and bonus shares.
Stock options provide
the recipient with the right to purchase shares of common stock at a price not less than their fair market value on the date of
the grant. The stock option price is payable in cash, by tendering previously acquired shares of common stock having an aggregate
fair market value at the time of exercise equal to the option price, by cashless (broker-assisted) exercise, or any other method
approved by the Board. No stock option may be exercised more than 10 years from the date of grant.
Stock options granted
under the Plan may be stock options that are intended to qualify as incentive stock options within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the “Code”). Incentive stock options may be granted only to participants
who meet the definition of “employees” under Section 3401(c) of the Code. In addition, in order to qualify for
incentive stock option treatment, in the case of options granted to a holder of 10% or more of the company’s common stock,
the stock option price may not be less than 110% of the fair market value of the stock on the date the stock option is granted.
Stock Appreciation Rights
Stock Appreciation Rights-
A Stock Appreciation Right (“SAR”) provides the recipient with the right to receive from us an amount, determined by
the Board and expressed as a percentage (not exceeding 100%), of the difference between the base price established for the appreciation
rights and the market value of the common stock on the date the rights are exercised. Appreciation rights can be tandem (i.e.,
granted with option rights to provide an alternative to the exercise of the option rights) or free-standing. Tandem appreciation
rights may only be exercised at a time when the related option right is exercisable and the spread is positive, and requires that
the related option right be surrendered for cancellation. Free-standing appreciation rights must have a base price per right that
is not less than the fair market value of the common stock on the grant date, must specify the period of continuous employment
that is necessary before such appreciation rights become exercisable and may not be exercisable more than 10 years from the grant
date.
Bonus Shares
Bonus Shares- Bonus Shares
are an award to an eligible person of shares for services to be rendered or for past services already rendered to the Company.
The Board will determine the number of shares to be awarded to the eligible individual, in accordance with any restrictions thereon.
These restrictions may be based upon completion of a specified number of years of service with the Company or upon satisfaction
of performance goals based on performance factors. Payment for the Bonus Shares may be made in the form of cash, whole shares,
or a combination thereof, based on the fair market value of the shares on the date of payment, as determined in the sole discretion
of the Board.
The status of these plans for the
years ended April 30, 2016 and April 30, 2015 is as follows:
|
|
Shares
|
|
|
Weighted
average
exercise
price
|
|
|
Weighted
average
remaining
contractual life
|
|
|
Aggregate
intrinsic
value (1)
|
|
Balance April 30, 2014
|
|
|
81,859
|
|
|
$
|
36.81
|
|
|
|
4.46
|
|
|
$
|
6,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Exercised
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Expired
|
|
|
(39,944
|
)
|
|
$
|
48.72
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance May 1, 2015
|
|
|
41,915
|
|
|
$
|
25.44
|
|
|
|
3.59
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted
|
|
|
79,556
|
|
|
$
|
4.89
|
|
|
|
—
|
|
|
|
—
|
|
Expired
|
|
|
(12,444
|
)
|
|
$
|
38.13
|
|
|
|
—
|
|
|
|
—
|
|
Exchanged / cancelled
|
|
|
(109,027
|
)
|
|
$
|
9.03
|
|
|
|
—
|
|
|
|
—
|
|
Balance April 30, 2016
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
—
|
|
|
(1)
|
This amount represents the difference between the exercise price and $1.86, the closing price of Dataram common stock on April
30, 2016 as reported on the NASDAQ Stock Market, for all in-the-money options outstanding and all the in-the-money shares exercisable
|
In fiscal year ended April 30,
2016, the Company granted stock options to purchase 79,556 shares of common stock to certain employees, officers and board of directors
of the Company. The Company’s consolidated statements of operations for fiscal 2016, includes approximately $746,000 of stock-based
compensation expense. In the fiscal year ended April 30, 2015, the Company did not grant any stock options. For fiscal year ended
April 30, 2015 the Company recorded approximately $14,000 of stock-based compensation expense.
On January 19, 2016, the Company
entered into exchange agreements (the “Option Exchange Agreements”) (Note 6) with certain of its employees pursuant
to which such employees agreed to return options to purchase an aggregate of up to 109,027 shares of common stock in consideration
for restricted stock grants (the “Restricted Stock Grants”) in the aggregate amount of 87,736 shares of Common Stock
pursuant to the Company’s 2011 Equity Incentive Plan and 2014 Equity Incentive Plan, as amended. The Restricted Stock Grants
are vested in full upon issuance. The Company recorded an additional one time stock based compensation expense of approximately
$122,000 as a result of the stock option exchange agreements. As of April 30, 2016, there was no unearned compensation costs related
to stock options remaining.
The fair value of each stock option
granted during fiscal year ended April 30, 2016 was estimated on the date of grant using the Black-Scholes option pricing model
using the following assumptions:
|
Fiscal Year Ended
April 30, 2016
|
Expected term (years)
|
2.5-3.0
|
Expected volatility
|
79%-80%
|
Dividend yield
|
0
|
Risk-free interest rate
|
.90% -1.01%
|
Weighted average per share grant date fair value
|
$2.34 - $3.09
|
The expected life represents the
period that the Company’s stock-based awards are expected to be outstanding and was calculated using the simplified method
pursuant to ASC 825. Expected volatility is based on the historical volatility of the Company’s Common Stock using the daily
closing price of the Company’s Common Stock, pursuant to Staff Accounting Bulletin 107. Expected dividend yield assumes the
current dividend rate remains unchanged. Expected forfeiture rate is based on the Company’s historical experience. The risk-free
interest rate is based on the rate of U.S Treasury zero-coupon issues with a remaining term equal to the expected life of the option
grants.
The Company calculated stock-based compensation expense
using a 5% forefiture rate.
Warrants
On January 15, 2016, the Company
entered into separate exchange agreements with various warrant holders, refer to (“Note 6”) Equity Exchange transactions.
At April 30, 2016, the Company
had 207,625 warrants outstanding with exercise prices between $7.50 and $40.68. At April 30, 2015, the Company had 1,102,758 warrants
outstanding with exercise prices between $6.00 and $40.68. A summary of warrant activity for the Fiscal year ended April 30, 2016
and 2015 is as follows:
|
|
Shares
|
|
|
Weighted
average
exercise
price
|
|
|
Weighted
average
remaining
contractual life years
|
|
|
Aggregate
intrinsic
value (1)
|
|
Balance May 1, 2014
|
|
|
161,925
|
|
|
$
|
24.27
|
|
|
|
3.34
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issued
|
|
|
940,833
|
|
|
$
|
7.88
|
|
|
|
|
|
|
|
—
|
|
Exchanged
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
Expired
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
Balance April 30, 2015
|
|
|
1,102,758
|
|
|
$
|
10.56
|
|
|
|
4.12
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issued
|
|
|
16,667
|
|
|
$
|
7.50
|
|
|
|
|
|
|
|
—
|
|
Exchanged
|
|
|
(881,800
|
)
|
|
$
|
8.10
|
|
|
|
|
|
|
|
|
|
Expired
|
|
|
(30,000
|
)
|
|
$
|
7.50
|
|
|
|
|
|
|
|
|
|
Balance April 30, 2016
|
|
|
207,625
|
|
|
$
|
19.74
|
|
|
|
1.24
|
|
|
|
—
|
|
|
(1)
|
This amount represents the difference between the conversion price and $1.86, the closing price
of Dataram common stock on April 30, 2016 as reported on the NASDAQ Stock Market, for all in-the-money warrants outstanding.
|
Note 10. Accrued Liabilities
Accrued liabilities consist of
the following at April 30:
|
|
2016
|
|
|
2015
|
|
Payroll, including vacation
|
|
$
|
17,000
|
|
|
$
|
27,000
|
|
Commissions
|
|
|
25,000
|
|
|
|
10,000
|
|
Deferred gain on equipment sale
|
|
|
72,000
|
|
|
|
72,000
|
|
Accounting and audit
|
|
|
25,000
|
|
|
|
53,000
|
|
Other
|
|
|
20,000
|
|
|
|
120,000
|
|
|
|
$
|
159,000
|
|
|
$
|
282,000
|
|
Note 11. Commitments and contingencies
Leases
The Company occupies various facilities
and operates equipment under operating lease arrangements. Rent charged to operations pursuant to such operating leases amounted
to approximately $316,000 in 2016 and $432,000 in 2015.
Future minimum lease payments under
non-cancelable operating leases (with initial or remaining lease terms in excess of one year) as of April 30, 2016 are as follows:
|
|
Non-Related
|
|
|
Related
|
|
|
|
|
|
|
Party
|
|
|
Party
|
|
|
Total
|
|
Year ending April 30:
|
|
|
|
|
|
|
|
|
|
|
|
|
2017
|
|
|
162,000
|
|
|
|
90,000
|
|
|
|
252,000
|
|
2018
|
|
|
84,000
|
|
|
|
90,000
|
|
|
|
174,000
|
|
2019
|
|
|
85,000
|
|
|
|
45,000
|
|
|
|
130,000
|
|
2020
|
|
|
86,000
|
|
|
|
—
|
|
|
|
86,000
|
|
Thereafter
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
417,000
|
|
|
$
|
225,000
|
|
|
$
|
642,000
|
|
Purchases
At April 30, 2016, the Company
had open purchase orders outstanding totaling $270,000 for inventory items to be delivered in the first three months of the fiscal
year ending April 30, 2017. These purchase orders are cancelable.
Legal Proceedings
Effective as of the close of business
on December 17, 2014, the Company terminated its agreement with MPP Associates, Inc., pursuant to which Marc P. Palker had been
providing CFO services to the Company. On April 8, 2015, MPP Associates, Inc. and Mr. Palker filed a complaint, styled MPP Associates,
Inc. and Marc Palker v. Dataram Corporation, Jon Isaac, David Moylan, Michael Markulec and Richard Butler, in the Superior Court
of the State of New Jersey, Essex County, Docket No. ESX-L-002413-15.
Effective as of the close of business
on January 22, 2015, the Company terminated the employment agreement with John H. Freeman, its former Chief Executive Officer.
On April 9, 2015, styled John Freeman v. Dataram Corporation, David A. Moylan, Jon Isaac, and John Does 1-5, in the Superior Court
of the State of New Jersey, Essex County, Docket No. ESX-L-002471-15.
Similarly,
on April 10, 2015, the Company filed an action against Mr. Freeman, Mr. Palker and MPP Associates, Inc., styled as Dataram Corporation
v. John Freeman, Marc Palker and MPP Associates, Inc., in the Superior Court of the State of New Jersey, Mercer County, Docket
No. ESX-L-000886-15.
The
aforementioned three State Court actions described have been consolidated in Essex County.
On
March 9, 2015, Marc Palker filed a complaint against the Company with the U.S. Department of Labor, Occupational Safety and Health
Administration, alleging a violation of the Sarbanes-Oxley Act of 2002.
On
June 26, 2015, Alethea Douglas, a former employee, filed a complaint against the Company with the U.S. Equal Employment Opportunity
Commission, alleging a claim for age discrimination in connection with the termination of her employment effective May 20, 2015.
A range of loss, if any, on the
aforementioned matters cannot be estimated at this point in time.
Note 12. Employee Benefit Plan
The Company has a defined contribution
plan (the “Plan”) which is available to all qualified employees. Employees may elect to contribute a portion of their
compensation to the Plan, subject to certain limitations. The Company contributes a percentage of the employee’s contribution,
subject to a maximum of 4.5 percent. The Company’s matching contributions aggregated approximately $99,000 and $151,000 in
2016 and 2015 respectively.
Note 13. Geographic Location Information
The Company operates in one business
segment and develops, manufactures and markets a variety of memory systems for use with servers and workstations which are manufactured
by various companies. Revenues, total assets and long lived assets for 2016 and 2015 by geographic region is as follows:
|
|
United
|
|
|
|
|
|
|
|
|
|
|
|
|
States
|
|
|
Europe
|
|
|
Other*
|
|
|
Consolidated
|
|
April 30, 2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
19,713,000
|
|
|
$
|
4,405,000
|
|
|
$
|
1,064,000
|
|
|
$
|
25,182,000
|
|
Total assets
|
|
$
|
5,743,000
|
|
|
$
|
8,000
|
|
|
$
|
0
|
|
|
$
|
5,751,000
|
|
Long lived assets
|
|
$
|
1,490,000
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
1,490,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 30, 2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
23,285,000
|
|
|
$
|
3,785,000
|
|
|
$
|
1,188,000
|
|
|
$
|
28,258,000
|
|
Total assets
|
|
$
|
6,269,000
|
|
|
$
|
6,000
|
|
|
$
|
0
|
|
|
$
|
6,275,000
|
|
Long lived assets
|
|
$
|
1,498,000
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
1,498,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*Principally Asia Pacific Region
Note 14. Subsequent Events
Entry into a Material Definitive Agreement
On June 13, 2016, Dataram Corporation,
a Nevada corporation ("we" or the "Company") entered into an Agreement and Plan of Merger (the "Merger
Agreement") with its wholly owned subsidiary, Dataram Acquisition Sub, Inc., a Nevada corporation (“Acquisition Sub”),
U.S. Gold Corp., a Nevada corporation ("U.S. Gold") an exploration state company that owns certain mining leases and
other mineral rights comprising the Copper King gold and copper development project located in the Silver Crown Ming District of
southeast Wyoming (the “Copper King Project”) and Copper King, LLC, a principal stockholder of U.S. Gold (“Copper
King”). The closing of the Merger is subject to customary closing conditions, including, among other things:
|
·
|
the approval of the Company’s shareholders holding a majority of the Company’s outstanding voting capital to issue the Merger Consideration (as defined below) pursuant to the continued listing standards of The NASDAQ Stock Market LLC;
|
|
·
|
the approval of the Company’s shareholders holding a majority of the Company’s outstanding voting capital to increase the number of shares of authorized Common Stock;
|
|
·
|
the closing by U.S. Gold of a financing pursuant to which it receives at least $3 million in net proceeds from the sale of its securities (the “U.S. Gold Financing”);
|
|
·
|
the closing by U.S. Gold of the acquisition of certain mining claims related to a gold development project in Eureka County, Nevada (the “Keystone Project”);
|
|
·
|
the receipt by the Company of a fairness opinion with respect to the Merger and the Merger Consideration; and
|
|
·
|
the Company’s Board of Directors shall have declared, as a special dividend, a right entitling each stockholder as of a record date (which shall be no less than five business days prior to the closing of the Merger) to a proportionate ownership interest, record or beneficial, equal to their ownership interest in the Company, of certain pre-Merger Company assets or the proceeds therefrom, as, when and if the Company’s Board of Directors elects to divest such assets within 18 months from the closing of the Merger.
|
Pursuant to the terms and conditions
of the Merger Agreement, at the closing of the Merger, the holders of U.S. Gold’s common stock, Series A Preferred Stock
and Series B Preferred Stock will be converted into the right to receive shares of the Company’s Common Stock or, at the
election of any U.S. Gold stockholder, shares of the Company’s newly designated 0% Series C Convertible Preferred Stock,
par value $0.001 per share (the “Series C Preferred Stock), which are convertible into shares of Common Stock (collectively,
the “Merger Consideration”). The Merger Consideration shall be allocated as follows and is presented below in terms
of Common Stock:
|
·
|
Twenty Million (20,000,000) shares of Common Stock shall be issued to the holders of U.S. Gold’s Series A Preferred Stock;
|
|
·
|
One Million Eight Hundred Sixty Six Thousand Seven Hundred and Seventeen (1,866,717) shares of Common Stock shall be issued to the holders of U.S. Gold’s Series B Preferred Stock;
|
|
·
|
Up to Fifteen Million One Hundred and Fifty One Thousand Five Hundred and Fifteen (15,151,515) shares of Common Stock shall be issued to holders of U.S. Gold’s common stock issued in connection with the U.S. Gold Financing;
|
|
·
|
One Million Eight Hundred and Fifty Thousand (1,850,000) shares of Common Stock shall be issued to the holders of U.S. Gold’s common stock issued in connection with the closing of the acquisition of the Keystone Project; and
|
|
·
|
One Million Six Hundred and Fifty Thousand (1,650,000) shares of Common Stock shall be issued to certain incoming officers and consultants pursuant to a shareholder approved equity incentive plan of the Company.
|
On July 6, 2016, the Company filed a certificate of
amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada in order to effectuate a reverse
split of the Company’s issued and outstanding common stock on a 1 for 3 basis, which was effective with the State of Nevada
on July 8, 2016 and with The NASDQ Stock Market at the open of trading on July 11, 2016. All per share amounts are reflective of
the reverse split.
On July 29, 2016, the Company, Acquisition Sub, U.S.
Gold and Copper King, amended and restated the Merger Agreement (the “Amended and Restated Merger Agreement”) in order
to:
|
·
|
Reflect the reverse split of the Company’s issued and outstanding common stock on a 1 for 3 basis, which was effective on July 11, 2016; and
|
|
|
|
|
·
|
Adjust certain aspects of the Merger Consideration and Management Consideration as follows, presented on a post reverse split and “as converted” basis:
|
|
|
|
|
·
|
Twenty Two Million Three Hundred and Thirty Three Thousand Three Hundred and Thirty Four (22,333,334) shares of common stock shall be issued to the holders of U.S. Gold’s Series A Preferred Stock;
|
|
|
|
|
·
|
One Million Eight Hundred Sixty Six Thousand Seven Hundred and Seventeen (1,866,717) shares of common stock shall be issued to the holders of U.S. Gold’s Series B Preferred Stock the receipt of which shall be conditioned on the receipt of a one year lockup agreement;
|
|
·
|
Up to Sixteen Million Six Hundred and Sixty Six Thousand Six Hundred and Sixty Seven (16,666,667) shares of common stock shall be issued to holders of U.S. Gold’s Series C Preferred Stock issued in connection with the U.S. Gold Financing;
|
|
·
|
Warrants to purchase such number of shares of common stock as shall equal the quotient of (i) 10% of the total dollar amount raised in the U.S. Gold Financing divided by (ii) three (3) shall be issued to the placement agent in the U.S. Gold Financing;
|
|
|
|
|
·
|
One Million Eight Hundred and Fifty Thousand (1,850,000) shares of common stock shall be issued to the holders of U.S. Gold’s common stock issued in connection with the closing of the Keystone Acquisition (as defined in the Amended and Restated Merger Agreement) the receipt of which shall be conditioned on the receipt of a two year lockup agreement; and
|
|
|
|
|
·
|
One Million five Hundred and Eighty Three Thousand Three Hundred and Thirty Three (1,583,333) shares of common stock shall be issued to certain incoming officers and consultants pursuant to a shareholder approved equity incentive plan of the Company
|
Restricted Common Share Bonus Awards to Employees, Executive Officers
and Directors
Between May 1, 2016 and July 29, 2016 the Company awarded
approximately 188,280 restricted shares of the Company’s Common Stock to employees, Executive Officers and Directors. The
approximate value of these grants is $429,000.
Series B Preferred Stock converted to Common Shares
The holders of 232,623 Series B Preferred Stock have
converted into approximately 1,550,820 restricted shares of Common Stock since the end of the reporting period to the close of
business on July 27, 2016.
On July 6, 2016, the Company filed a certificate of
amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada in order to effectuate a reverse
stock split of the Company’s issued and outstanding common stock on a 1 for 3 basis, effective with the State of Nevada on
July 8, 2016 in order to regain compliance with NASDAQ’s minimum bid price requirement. The reverse stock split was effective
with The NASDAQ Capital Market on July 11, 2016.
Dataram Corporation
Condensed Consolidated Balance Sheets
|
|
October 31,
2016
|
|
|
April 30,
2016
|
|
|
|
(Unaudited)
|
|
|
|
|
Assets
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
62,953
|
|
|
$
|
56,262
|
|
Accounts receivable, less allowance for doubtful accounts and sales returns of $60,000 and $100,000, respectively.
|
|
|
1,392,158
|
|
|
|
2,746,010
|
|
Inventories, net
|
|
|
1,328,995
|
|
|
|
1,335,654
|
|
Other current assets
|
|
|
212,365
|
|
|
|
122,775
|
|
Total current assets
|
|
|
2,996,471
|
|
|
|
4,260,701
|
|
|
|
|
|
|
|
|
|
|
Property and equipment, net
|
|
|
27,754
|
|
|
|
50,754
|
|
|
|
|
|
|
|
|
|
|
Other assets
|
|
|
34,151
|
|
|
|
29,479
|
|
Capitalized software development costs, net
|
|
|
300,174
|
|
|
|
326,274
|
|
Goodwill
|
|
|
1,083,555
|
|
|
|
1,083,555
|
|
Total assets
|
|
$
|
4,442,105
|
|
|
$
|
5,750,763
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Stockholders' Equity
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Note payable-revolving credit line
|
|
$
|
988,264
|
|
|
$
|
1,775,839
|
|
Accounts payable
|
|
|
521,083
|
|
|
|
736,922
|
|
Accrued liabilities
|
|
|
143,837
|
|
|
|
158,869
|
|
Convertible notes payable related parties
|
|
|
80,000
|
|
|
|
80,000
|
|
Total current liabilities
|
|
|
1,733,184
|
|
|
|
2,751,630
|
|
|
|
|
|
|
|
|
|
|
Other liabilities
|
|
|
71,667
|
|
|
|
107,499
|
|
Total liabilities
|
|
|
1,804,851
|
|
|
|
2,859,129
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies
|
|
|
|
|
|
|
|
|
Stockholders' equity:
|
|
|
|
|
|
|
|
|
Preferred stock series A, par value $.01 per share. Designated 1,300,000 shares and no shares issued and outstanding at October 31, 2016 and April 30, 2016
|
|
|
—
|
|
|
|
—
|
|
Preferred stock series B, par value $12.20 per share. Designated 400,000 shares; Issued and outstanding shares 48,916 at October 31, 2016 and 331,559 at April 30, 2016, (Liquidation value $596,763)
|
|
|
596,763
|
|
|
|
4,045,007
|
|
Preferred stock series D, par value $136.00 per share. Designated 7,402 shares; Issued and outstanding shares 3,699 at October 31, 2016 and no shares issued and outstanding at April 30, 2016, (Liquidation value $503,000)
|
|
|
503,000
|
|
|
|
—
|
|
Common stock, par value $.001 per share
|
|
|
|
|
|
|
|
|
Authorized 54,000,000 common shares; par value $.001, issued and outstanding 3,716,010 at October 31, 2016 and 1,643,391 at April 30, 2016
|
|
|
3,716
|
|
|
|
1,644
|
|
Additional paid-in capital
|
|
|
28,431,597
|
|
|
|
24,556,425
|
|
Accumulated deficit
|
|
|
(26,897,822
|
)
|
|
|
(25,711,442
|
)
|
Total stockholders' equity
|
|
|
2,637,254
|
|
|
|
2,891,634
|
|
Total liabilities and stockholder’s equity
|
|
$
|
4,442,105
|
|
|
$
|
5,750,763
|
|
See accompanying notes to condensed consolidated financial statements.
Dataram Corporation
Condensed Consolidated Statements of Operations
Three and Six Months Ended October 31, 2016 and 2015
(Unaudited)
|
|
Three months ended October 31,
|
|
|
Six months ended October 31,
|
|
|
|
2016
|
|
|
2015
|
|
|
2016
|
|
|
2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
4,679,079
|
|
|
$
|
6,050,772
|
|
|
$
|
9,593,936
|
|
|
$
|
13,388,454
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Costs and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales
|
|
|
3,828,573
|
|
|
|
4,848,192
|
|
|
|
8,017,813
|
|
|
|
10,782,669
|
|
Engineering
|
|
|
42,054
|
|
|
|
46,280
|
|
|
|
98,080
|
|
|
|
100,239
|
|
Selling, general and administrative
|
|
|
1,024,617
|
|
|
|
1,279,723
|
|
|
|
2,580,567
|
|
|
|
2,683,989
|
|
Total costs and expenses
|
|
|
4,895,244
|
|
|
|
6,174,195
|
|
|
|
10,696,460
|
|
|
|
13,566,897
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations
|
|
|
(216,165
|
)
|
|
|
(123,423
|
)
|
|
|
(1,102,524
|
)
|
|
|
(178,443
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
(39,996
|
)
|
|
|
(53,726
|
)
|
|
|
(78,789
|
)
|
|
|
(116,370
|
)
|
Other income (loss)
|
|
|
(3,277
|
)
|
|
|
6,881
|
|
|
|
(5,068
|
)
|
|
|
7,289
|
|
Total other expense, net
|
|
|
(43,273
|
)
|
|
|
(46,845
|
)
|
|
|
(83,857
|
)
|
|
|
(109,081
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes
|
|
|
(259,438
|
)
|
|
|
(170,268
|
)
|
|
|
(1,186,381
|
)
|
|
|
(287,524
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on sale of State NOL
|
|
|
—
|
|
|
|
190,462
|
|
|
|
—
|
|
|
|
190,462
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
(259,438
|
)
|
|
|
20,194
|
|
|
|
(1,186,381
|
)
|
|
|
(97,062
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividend – Series A preferred stock
|
|
|
—
|
|
|
|
(58,949
|
)
|
|
|
—
|
|
|
|
(121,609
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss allocated to common shareholders
|
|
$
|
(259,438
|
)
|
|
$
|
(38,755
|
)
|
|
$
|
(1,186,381
|
)
|
|
$
|
(218,671
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share of common stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
$
|
(0.07
|
)
|
|
$
|
(0.03
|
)
|
|
$
|
(0.40
|
)
|
|
$
|
(0.21
|
)
|
Weighted average common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
3,709,819
|
|
|
|
1,178,679
|
|
|
|
2,942,591
|
|
|
|
1,036,141
|
|
See accompanying notes to condensed consolidated financial statements.
Dataram Corporation
Condensed Consolidated Statement of Stockholders’
Equity
Six Months Ended October 31, 2016
(Unaudited)
|
|
Preferred
Stock Series B
|
|
|
Preferred
Stock Series D
|
|
|
Common
Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares
|
|
|
Amount
|
|
|
Shares
|
|
|
Amount
|
|
|
Shares
|
|
|
Amount
|
|
|
Additional
Paid-in
Capital
|
|
|
Accumulated
deficit
|
|
|
Total
equity
|
|
Balance at May 1, 2016
|
|
|
331,559
|
|
|
$
|
4,045,007
|
|
|
|
—
|
|
|
|
—
|
|
|
|
1,643,391
|
|
|
$
|
1,644
|
|
|
$
|
24,556,425
|
|
|
$
|
(25,711,442
|
)
|
|
$
|
2,891,634
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation expense
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
188,333
|
|
|
|
188
|
|
|
|
428,812
|
|
|
|
—
|
|
|
|
429,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Conversion of series B preferred stock to restricted common shares
|
|
|
(282,643
|
)
|
|
|
(3,448,244
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
1,884,286
|
|
|
|
1,884
|
|
|
|
3,446,360
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of series D preferred stock for cash
|
|
|
—
|
|
|
|
—
|
|
|
|
3,699
|
|
|
|
503,000
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
503,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(1,186,380
|
)
|
|
|
(1,186,380
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at October 31, 2016
|
|
|
48,916
|
|
|
$
|
596,763
|
|
|
|
3,699
|
|
|
$
|
503,000
|
|
|
|
3,716,010
|
|
|
$
|
3,716
|
|
|
$
|
28,431,597
|
|
|
$
|
(26,897,822
|
)
|
|
$
|
2,637,254
|
|
See accompanying notes to condensed consolidated financial statements.
Dataram Corporation
Condensed Consolidated Statements of Cash Flows
Six Months Ended October 31, 2016 and 2015
(Unaudited)
|
|
2016
|
|
|
2015
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(1,186,380
|
)
|
|
$
|
(97,062
|
)
|
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
|
|
|
|
|
|
|
|
|
Amortization of deferred gain on sale leaseback
|
|
|
(35,832
|
)
|
|
|
(35,832
|
)
|
Depreciation and amortization
|
|
|
49,100
|
|
|
|
68,301
|
|
Bad debt expense
|
|
|
2,897
|
|
|
|
5,222
|
|
Stock-based compensation expense
|
|
|
429,000
|
|
|
|
272,317
|
|
Changes in assets and liabilities:
|
|
|
|
|
|
|
|
|
Decrease (increase) in accounts receivable
|
|
|
1,350,955
|
|
|
|
(1,126,469
|
)
|
Decrease in inventories
|
|
|
6,659
|
|
|
|
697,696
|
|
Increase in other current assets
|
|
|
(89,590
|
)
|
|
|
(3,806
|
)
|
Increase (decrease) in other assets
|
|
|
(4,672
|
)
|
|
|
19,731
|
|
Increase (decrease) in accounts payable
|
|
|
(215,839
|
)
|
|
|
33,353
|
|
Decrease in accrued and other liabilities
|
|
|
(15,032
|
)
|
|
|
(107,532
|
)
|
Net cash provided by (used in) operating activities
|
|
|
291,266
|
|
|
|
(274,081
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Additions of property and equipment
|
|
|
—
|
|
|
|
(22,000
|
)
|
Net cash used in investing activities
|
|
|
—
|
|
|
|
(22,000
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Net borrowings (repayments) under revolving credit line
|
|
|
(787,575
|
)
|
|
|
13,295
|
|
Repayment of convertible notes
|
|
|
—
|
|
|
|
(27,500
|
)
|
Proceeds from sale of preferred shares
|
|
|
503,000
|
|
|
|
100,000
|
|
Proceeds from sale of common shares
|
|
|
—
|
|
|
|
500,000
|
|
Net cash (used in) provided by financing activities
|
|
|
(284,575
|
)
|
|
|
585,795
|
|
|
|
|
|
|
|
|
|
|
Net increase in cash
|
|
|
6,691
|
|
|
|
289,714
|
|
|
|
|
|
|
|
|
|
|
Cash at beginning of period
|
|
|
56,262
|
|
|
|
327,298
|
|
|
|
|
|
|
|
|
|
|
Cash at end of period
|
|
$
|
62,953
|
|
|
$
|
617,012
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosures of cash flow information:
|
|
|
|
|
|
|
|
|
Cash paid during the period for:
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
78,789
|
|
|
$
|
116,370
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosures of cash flow information:
|
|
|
|
|
|
|
|
|
Conversion of series B preferred stock into common stock
|
|
$
|
3,448,244
|
|
|
$
|
—
|
|
Issuance of common stock for accrued dividend on series A preferred shares
|
|
$
|
—
|
|
|
$
|
174,233
|
|
See accompanying notes to condensed consolidated financial statements.
Dataram Corporation
Notes to Condensed Consolidated Financial Statements
October 31, 2016 and 2015
(Unaudited)
Note 1: Basis of Presentation and Summary of Significant
Accounting Policies
Organization and Nature of Business
Dataram Corporation (“Dataram” or the “Company”)
is an independent manufacturer and reseller of memory products and provider of performance solutions. The Company provides customized
memory solutions for original equipment manufacturers (OEMs) and compatible memory for leading brands including Cisco, Dell, Fujitsu,
HP, IBM, Lenovo and Oracle as well as a line of memory products for Intel and AMD motherboard based servers. Dataram manufactures
its memory in-house to meet three key criteria - quality, compatibility, and selection - and tests its memory for performance and
OEM compatibility as part of the production process. The Company has memory designed for over 50,000 systems and products
that range from energy-efficient DDR4 modules to legacy SDR offerings. The Company is a CMTL Premier Participant and ISO
9001 (2008 Certified). Its products are fully compliant with JEDEC Specifications.
Dataram’s customers include a global network
of distributors, resellers, retailers, OEM customers and end users.
Dataram competes with several large independent memory
manufacturers and OEMs. The primary raw material used in producing memory boards is dynamic random access memory (DRAM) chips.
The purchase cost of DRAMs is the largest single component of the total cost of a finished memory board. Consequently, average
selling prices for computer memory boards are significantly dependent on the pricing and availability of DRAM chips.
Liquidity and Going Concern
The Company's condensed consolidated
financial statements are prepared using the accrual method of accounting in accordance with accounting principles generally accepted
in the United States of America (“GAAP”) and have been prepared assuming that the Company will continue as a going
concern, which contemplates the realization of assets and the settlement of liabilities in the normal course of business. For the
fiscal year ended April 30, 2016, the Company incurred losses of approximately $1,221,000. The Company also incurred losses of
approximately $1,186,000 in fiscal 2017’s first six months ended October 31, 2016.
If current and projected revenue
growth does not meet estimates, the Company may need to raise additional capital through debt and/or equity transactions and further
reduce certain overhead costs. The Company may require up to $1,000,000 of additional working capital over the next twelve months
to support operations. The Company cannot provide assurance that it will obtain any required financing or such financing will be
available to it on favorable terms.
Based on the above, there
is substantial doubt about the Company’s ability to continue as a going concern. The condensed consolidated financial statements
do not include any adjustments relating to the recoverability and classification of recorded assets, or the amounts of and classification
of liabilities that might be necessary in the event the Company cannot continue in existence.
Basis of Presentation
The condensed consolidated financial statements have
been prepared in accordance with GAAP for interim financial statements and with Form 10-Q and Article 10 of Regulation S-X of the
United States Securities and Exchange Commission (“SEC”). Accordingly, they do not contain all information and footnotes
required by GAAP for annual financial statements. The condensed consolidated financial statements include the accounts of the Company
and its wholly-owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation. In the opinion
of the Company’s management, the accompanying unaudited condensed consolidated financial statements contain all the adjustments
necessary (consisting only of normal recurring accruals) to present the financial position of the Company as of October 31, 2016
and the results of operations and cash flows for the periods presented. The results of operations for the three and six months
ended October 31, 2016 are not necessarily indicative of the operating results for the full fiscal year or for any future period.
These condensed consolidated financial statements should
be read in conjunction with the consolidated financial statements and related notes thereto included in the Company’s Annual
Report on Form 10-K for the year ended April 30, 2016. The Company’s accounting policies are described in the Notes to Consolidated
Financial Statements in its Annual Report on Form 10-K for the year ended April 30, 2016, and updated, as necessary, in this Quarterly
Report on Form 10-Q.
On July 6, 2016, the Company filed a certificate of
amendment to its Articles of Incorporation with the Nevada Secretary of State in order to effectuate a reverse stock split of the
Company’s issued and outstanding common stock, par value $0.001 per share on a one (1) for three (3) basis, effective on
July 8, 2016. The accompanying condensed consolidated financial statements and notes thereto give retrospective effect of the reverse
stock split for all periods presented.
Use of Estimates
The preparation of financial statements in conformity
with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, including
deferred tax asset valuation allowances and certain other reserves and disclosure of contingent assets and liabilities at the date
of the financial statements and the reported amounts of revenues and expenses during the reporting period. Estimates and assumptions
are reviewed periodically and the effects of revisions are reflected in the consolidated financial statements in the period they
are determined to be necessary. Some of the more significant estimates made by management include allowance for doubtful accounts
and sales returns, reserve for inventory obsolescence, deferred income tax asset and related valuation allowance
,
fair value
of certain financial instruments, impairment assessment of carrying value of goodwill and other intangible assets and other operating
allowances and accruals. Actual results could differ from those estimates.
Revenue Recognition
Revenue is recognized when title passes upon shipment
of goods to customers. The Company’s revenue earning activities involve delivering or producing goods. The following criteria
are met before revenue is recognized: persuasive evidence of an arrangement exists, shipment has occurred, selling price is fixed
or determinable and collection is reasonably assured. The Company does experience a minimal level of sales returns and allowances
for which the Company accrues a reserve at the time of sale. Estimated warranty costs are accrued by management upon product shipment
based on an estimate of future warranty claims. Such amounts were not material for the three and six months ended October 31, 2016
and 2015.
Net Loss per Share
Basic net loss per share is computed by dividing the
net loss available to common stock holders by the weighted average number of shares of common stock issued and outstanding during
the period. The calculation of diluted loss per share for the three and months ended October 31, 2016 and 2015 includes only the
weighted average number of shares of common stock outstanding. The denominator excludes the dilutive effect of common shares issuable
upon exercise or conversion of stock options, warrants, convertible notes and Series A, Series B and Series D preferred shares
as their effect would be anti-dilutive.
Anti-dilutive securities consisted of the following
at October 31:
|
|
2016
|
|
|
2015
|
|
Common stock equivalent of convertible notes
|
|
|
—
|
|
|
|
100,000
|
|
Common stock equivalent of convertible notes – related parties
|
|
|
9,070
|
|
|
|
9,070
|
|
Series A preferred shares
|
|
|
—
|
|
|
|
946,069
|
|
Series B preferred shares
|
|
|
326,107
|
|
|
|
—
|
|
Series D preferred shares
|
|
|
369,853
|
|
|
|
—
|
|
Warrants
|
|
|
133,667
|
|
|
|
1,119,425
|
|
Common shares reserved for series A preferred share dividends
|
|
|
—
|
|
|
|
15,595
|
|
Stock options
|
|
|
2,778
|
|
|
|
111,916
|
|
Total
|
|
|
841,475
|
|
|
|
2,302,075
|
|
Recently Issued Accounting Pronouncements
On November 17, 2016,
the FASB issued Accounting Standards Update (ASU) 2016-18,
Statement of Cash Flows (Topic 230): Restricted Cash
, providing
specific guidance on the cash flow classification and presentation of changes in restricted cash and restricted cash equivalents.
The amendments in ASU 2016-18 require that a statement of cash flows (SCF) explain the change during the period in the total of
cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents (collectively “CASH”).
Therefore, amounts generally described as restricted cash and restricted cash equivalents should be included with cash and cash
equivalents when reconciling the beginning-of-period and end-of-period total amounts shown on the SCF. The amendments in ASU 2016-18
are effective for public business entities for fiscal years beginning after December 15, 2017, and interim periods within those
fiscal years. Early adoption is permitted, including adoption in an interim period.
The Company is currently evaluating
the impact of this accounting standard on its condensed consolidated financial statements.
On August 26, 2016, the
FASB issued Accounting Standards Update (ASU) 2016-15,
Classification of Certain Cash Receipts and Cash Payments
, seeking
to eliminate diversity in practice related to how certain cash receipts and cash payments are presented and classified in the statement
of cash flows. The amendments in ASU 2016-15 address eight specific cash flow issues and apply to all entities, including both
business entities and not-for-profit entities that are required to present a statement of cash flows under FASB
Accounting Standards
Codification
(FASB ASC) 230,
Statement of Cash Flows.
The amendments in ASU 2016-15 are effective for public business
entities for fiscal years beginning after December 15, 2017, and interim periods within those fiscal years. Early adoption
is permitted, including adoption in an interim period.
The Company is currently evaluating the impact of this accounting
standard on its condensed consolidated financial statements.
Note 2: Related Party Transactions
The Company purchased inventories for resale from Sheerr
Memory, LLC (“Sheerr Memory”). Sheerr Memory’s owner (“Mr. Sheerr”) was employed by the Company as
an advisor until August 31, 2016. For the six months ended October 31, 2016 the Company purchased approximately $40,000 of inventories
and during the three month period ended October 31, 2016 the Company purchased approximately $21,000 of inventories. In the three
and six month prior year periods ended October 31, 2015, the Company purchased approximately $165,000 of inventories and $289,000
of inventories, respectively, from Sheerr Memory. Accounts payable of nil and approximately $11,000 in the Company’s condensed
consolidated balance sheets as of October 31, 2016 and April 30, 2016 respectively, was payable to Sheerr Memory. Sheerr Memory
offers the Company trade terms of net 30 days and all invoices were settled in the normal course of business. No interest is paid.
The Company purchased inventories for resale from Keystone
Memory Group (“Keystone Memory”). Keystone Memory’s owner is a relative of Mr. Sheerr. During the three and six
month period ended October 31, 2016 the Company purchased approximately $81,000 of inventories and $501,000 of inventories, respectively.
In the three and six month prior year periods ended October 31, 2015, the Company purchased approximately $25,000 of inventories
and $658,000 of inventories, respectively, from Keystone Memory. Accounts payable of nil and approximately $190,000 in the Company’s
condensed consolidated balance sheets as of October 31, 2016 and April 30, 2016 respectively was payable to Keystone Memory. Keystone
Memory offers the Company trade terms of net due and all invoices are settled in the normal course of business. No interest is
paid.
On October 31, 2013, the Company entered into an agreement
with Mr. Sheerr to leaseback the equipment and furniture that was sold to Mr. Sheerr on October 31, 2013 for $500,000. The lease
is for a term of 60 months and the Company is obligated to pay approximately $7,500 per month for the term of the lease. The Company
has an option to extend the lease for an additional two year period. The transactions described have been accounted for as a sale-leaseback
transaction. Accordingly, the Company recognized a gain on the sale of assets of approximately $103,000, which is the amount of
the gain on sale in excess of present value of the future lease payments and will recognize the remaining deferred gain of approximately
$358,000 in proportion to the related gross rental charged to expense over the term of the lease, 60 months. The current portion
of approximately $72,000 deferred gain was reflected in accrued liabilities and the long-term portion of approximately $72,000
is reflected in other liabilities – long-term in the condensed consolidated balance sheet as of October 31, 2016. As of April
30, 2016, the current portion of $72,000 deferred gain is reflected in accrued liabilities and the long-term portion of approximately
$107,000 is reflected in other liabilities – long-term in the condensed consolidated balance sheet as of April 30, 2016.
Note 3: Note Payable – Revolving Credit Line
The Company’s financing agreement (the “Financing
Agreement”) with Rosenthal & Rosenthal, Inc. provides for a revolving loan with a maximum borrowing capacity of $3,500,000.
The Financing Agreement renewal date was August 31, 2016 and will renew from year to year unless such Financing Agreement is terminated
as set forth in the loan agreement. The amount outstanding under the Financing Agreement bears interest at a rate of the Prime
Rate (as defined in the Financing Agreement) plus 3.25% (the “Effective Rate”) or on Over-advances (as defined in the
Financing Agreement), if any, at a rate of the Effective Rate plus 3%. The Financing Agreement contains other financial and restrictive
covenants, including, among others, covenants limiting the Company’s ability to incur indebtedness, guarantee obligations,
sell assets, make loans, enter into mergers and acquisition transactions and declare or make dividends. Borrowings under the Financing
Agreement are collateralized by substantially all the assets of the Company. The Financing Agreement provides for advances against
eligible accounts receivable and inventory balances based on prescribed formulas of raw materials and finished goods. There was
approximately $131,000 of additional availability as of October 31, 2016.
Note 4: Stockholder’s Equity
Series B preferred shares
For the six months ended October 31, 2016, holders
of Series B Preferred Stock (the “Series B Preferred Stock”) converted 282,643 shares of Series B Preferred Stock into
1,884,286 shares of common stock. The converted value for each share Series B Preferred Stock is approximately $12.20 or an aggregate
of $3,448,244 and resulted in an offsetting increase to Additional Paid in Capital in the October 31, 2016 consolidated balance
sheet. As of October 31, 2016, there were 48,916 shares of Series B Preferred Stock outstanding convertible into approximately
326,107 shares of common stock.
Series D preferred shares
On August 3, 2016, the Company entered into separate
securities purchase agreements with accredited investors for the issuance and sale of the Company’s newly designated 0% Series
D Convertible Preferred Stock (the “Series D Preferred Stock”) which are convertible into shares of the Company’s
common stock, par value $0.001 per share. The Series D Preferred Stock is governed by a Certificate of Designations, Preferences
and Rights of the 0% Series D Convertible Preferred Stock. Each share of Series D Preferred Stock was sold at a per share purchase
price of $136.00 and converts into 100 shares of common stock, subject to adjustment for dividends and stock splits. On August
5, 2016, the Company closed the private placement and sold 3,699 shares of Series D Preferred Stock convertible into an aggregate
of approximately 369,900 shares of common stock with gross proceeds to the Company of $503,000.
Bonus Shares
Bonus shares (the “Bonus Shares”)
are an award to an eligible person of shares for services to be rendered or for past services already rendered to the Company.
The Board of Directors of the Company (the “Board”) will determine the number of shares to be awarded to the eligible
individual, in accordance with any restrictions thereon. These restrictions may be based upon completion of a specified number
of years of service with the Company or upon satisfaction of performance goals based on performance factors. Payment for the Bonus
Shares may be made in the form of cash, whole shares, or a combination thereof, based on the fair market value of the shares on
the date of payment, as determined in the sole discretion of the Board.
Between May 1, 2016 and October 31, 2016 the Company
awarded 188,333 restricted shares of the Company’s common stock to employees, executive officers and directors. The Company’s
condensed consolidated statements of operations for the six months ended October 31, 2016 includes approximately $429,000 of stock-based
compensation expense. These stock grants have been classified as equity instruments and, as such, a corresponding increase has
been reflected in additional paid-in capital in the accompanying consolidated balance sheets.
Warrants
At October 31, 2016 the Company had 133,667 warrants
outstanding with exercise prices between $7.50 and $10.50. A summary of warrant activity for the three months ended October 31,
2016 is as follows:
|
|
Shares
|
|
|
Weighted
average
exercise
price
|
|
|
Weighted
average
remaining
contractual life years
|
|
|
Aggregate
intrinsic
value (1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance May 1, 2016
|
|
|
207,625
|
|
|
$
|
19.74
|
|
|
|
1.24
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issued
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Expired
|
|
|
(73,958
|
)
|
|
$
|
40.68
|
|
|
|
|
|
|
|
|
|
Balance October 31, 2016
|
|
|
133,667
|
|
|
$
|
8.15
|
|
|
|
2.07
|
|
|
|
—
|
|
|
(1)
|
This amount represents the difference between the conversion price and $1.03, the closing price
of Dataram common stock on October 31, 2016 as reported on the NASDAQ Stock Market, for all in-the-money warrants outstanding.
|
Note 5: Commitments and Contingencies
Leases
Future minimum lease payments under non-cancelable
operating leases (with initial or remaining lease terms in excess of one year) as of October 31, 2016 are as follows:
|
|
Total
|
|
Year ending April 30:
|
|
|
|
|
2017 (Remaining)
|
|
|
131,000
|
|
2018
|
|
|
173,000
|
|
2019
|
|
|
130,000
|
|
2020
|
|
|
86,000
|
|
Total
|
|
$
|
520,000
|
|
Legal Proceedings
Effective as of the close of business on December 17,
2014, the Company terminated its agreement with MPP Associates, Inc., pursuant to which Marc P. Palker had been providing CFO services
to the Company. On April 8, 2015, MPP Associates, Inc. and Mr. Palker filed a complaint,
MPP Associates, Inc. and Marc Palker
v. Dataram Corporation, Jon Isaac, David Moylan, Michael Markulec and Richard Butler
, in the Superior Court of the State of
New Jersey, Essex County, Docket No. ESX-L-002413-15.
Effective as of the close of business on January 22,
2015, the Company terminated the employment agreement with John H. Freeman, its former Chief Executive Officer. On April 9, 2015,
Mr. Freeman filed a complaint,
John Freeman v. Dataram Corporation, David A. Moylan, Jon Isaac, and John Does 1-5
, in the
Superior Court of the State of New Jersey, Essex County, Docket No. ESX-L-002471-15.
Similarly, on April
10, 2015, the Company filed an action against Mr. Freeman, Mr. Palker and MPP Associates, Inc.,
Dataram Corporation v. John
Freeman, Marc Palker and MPP Associates, Inc.
, in the Superior Court of the State of New Jersey, Mercer County, Docket No.
ESX-L-000886-15.
The aforementioned three State Court actions described
have been consolidated in Essex County.
On March 9, 2015,
Marc Palker filed a complaint against the Company with the U.S. Department of Labor, Occupational Safety and Health Administration,
alleging a violation of the Sarbanes-Oxley Act of 2002.
On June 26, 2015,
Alethea Douglas, a former employee, filed a complaint against the Company with the U.S. Equal Employment Opportunity Commission,
alleging a claim for age discrimination in connection with the termination of her employment effective May 20, 2015.
A range of loss, if any, on the aforementioned matters
cannot be estimated at this point in time.
Note 6: Financial Information by Geographic Location
The Company currently operates in one business segment
that develops, manufactures and markets a variety of memory systems for use with network servers and workstations which are manufactured
by various companies. Revenues for the three and six months ended October 31, 2016 and 2015 by geographic region are as follows:
|
|
Three months
ended
October 31,
2016
|
|
|
Six months
ended
October 31,
2016
|
|
United States
|
|
$
|
3,432,000
|
|
|
$
|
6,694,000
|
|
Europe
|
|
|
840,000
|
|
|
|
1,983,000
|
|
Other (principally Asia Pacific Region)
|
|
|
407,000
|
|
|
|
917,000
|
|
Consolidated
|
|
$
|
4,679,000
|
|
|
$
|
9,594,000
|
|
|
|
Three months
ended
October 31,
2015
|
|
|
Six months
ended
October 31,
2015
|
|
United States
|
|
$
|
5,108,000
|
|
|
$
|
11,220,000
|
|
Europe
|
|
|
879,000
|
|
|
|
1,995,000
|
|
Other (principally Asia Pacific Region)
|
|
|
64,000
|
|
|
|
173,000
|
|
Consolidated
|
|
$
|
6,051,000
|
|
|
$
|
13,388,000
|
|
Note 7: Concentration of Credit Risk
Financial instruments that potentially subject the
Company to concentrations of credit risk consist primarily of cash and accounts receivable. The Company maintains its cash in financial
institutions. To the extent that such deposits exceed the maximum insurance levels, they are uninsured. The Company performs ongoing
evaluations of its customers’ financial condition, as well as general economic conditions and, generally, requires no collateral
from its customers. At October 31, 2016 amounts due from four customers totaled approximately 36%, 18%, 11% and 10%, of accounts
receivable. At April 30, 2016, amounts due from one customer totaled approximately 15%.
In the fiscal quarter ended October 31, 2016 the Company
had sales to one customer that totaled approximately 40% of revenues. For the six months ended October 31, 2016 sales to one customer
totaled approximately 33% of revenues. For the comparable prior year quarter ended October 31, 2015, the Company had sales to three
customers that were over 10% of revenues. These shipments were approximately 19%, 15% and 13% of total revenues, respectively.
For the six months ended October 31, 2015, the Company had sales to three customers that were over 10% of revenues. These shipments
were approximately 17%, 14% and 13% of total revenues, respectively.
Note 8: Entry into a Material Definitive Agreement
On June 13, 2016, the Company entered into an Agreement
and Plan of Merger (the “Merger Agreement”) with its wholly owned subsidiary, Dataram Acquisition Sub, Inc. (“Acquisition
Sub”), a Nevada corporation, U.S. Gold Corp., a Nevada corporation and exploration stage company that owns certain mining
leases and other mineral rights comprising the Copper King gold and copper development project located in the Silver Crown Mining
District of southeast Wyoming, and Copper King, LLC (“Copper King”), a principal stockholder of U.S. Gold Corp (the
“Merger”) and the Keystone Project located in Eureka county, Nevada.. The closing of the Merger is subject to conditions
as defined in the Merger Agreement.
Pursuant to the terms and conditions of the Merger
Agreement, at the closing of the Merger, U.S. Gold Corp.’s common stock, Series A Preferred Stock and Series B Preferred
Stock will be converted into the right to receive shares of the Company’s common stock or, at the election of any U.S. Gold
Corp. stockholder, shares of the Company’s newly designated 0% Series C Convertible Preferred Stock, par value $0.001 per
share, which are convertible into shares of common stock (the “Merger Consideration”). The Merger Consideration shall
be allocated as defined in the Merger Agreement.
On July 6, 2016, the Company filed a certificate of
amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada in order to effectuate a reverse
split of the Company’s issued and outstanding common stock on a 1 for 3 basis, which was effective with the State of Nevada
on July 8, 2016 and with The NASDAQ Stock Market at the open of trading on July 11, 2016. All share and per share amounts are reflective
of the reverse split.
On July 29, 2016, the Company, Acquisition Sub, U.S.
Gold Corp. and Copper King, amended and restated the Merger Agreement to reflect the reverse split of the Company’s issued
and outstanding common stock and to adjust certain aspects of the Merger Consideration and management consideration as defined
in the Merger Agreement, as amended.
On September 14, 2016, the Company, Acquisition Sub,
U.S. Gold Corp. and Copper King, amended and restated the Merger Agreement, as amended, to adjust certain aspects of the Merger
Consideration and revise other covenants of the Merger Agreement, as amended (the “Second Amended and Restated Agreement”).
The Second Amended and Restated Agreement among other
things:
|
·
|
Increased the number of shares issuable to holders of U.S. Gold’s Series C Preferred Stock issued in connection with U.S. Gold’s private placement (the “Financing”) to 18,181,817 from 16,666,667 shares and increase the maximum number of warrants to purchase the Company’s common stock issuable to the placement agent in the Financing to 400,000 warrants from 250,000 warrants;
|
|
·
|
Reduced the number of Escrow Shares (as defined in the Merger Agreement) to be delivered and held in escrow to secure any claims that may arise with respect to the representations, warranties, covenants or indemnification obligations of Copper King LLC to 10% of the Company Stockholder Consideration (as defined in the Merger Agreement) from 15%;
|
|
·
|
Removed the delivery of a new preliminary economic report (the “New Report”) showing a lower economic value for the Copper King Project than the previously delivered preliminary economic report as a trigger for the release of any Escrow Shares (as defined in the Merger Agreement);
|
|
·
|
Included a covenant for the delivery by U.S. Gold of a New Report within one year of the closing of the merger;
|
|
·
|
Included the requirement for the Company to register the Merger Consideration on a Form S-4;
|
|
·
|
Included a covenant that certain officers and directors of the Company shall be issued an aggregate of 820,000 shares of restricted stock pursuant to a shareholder approved equity incentive plan, subject to the execution of a two year lockup agreement; and
|
|
·
|
Revised the maximum number of shares the Company shall have outstanding at the closing of the merger, on a fully diluted basis, to 4,559,178 shares of common stock.
|
Note 9: Subsequent event
Between the quarter ended October 31, 2016 and the
filing of this report, the holders of Series B Preferred Stock converted 48,916 Series B Preferred shares into 326,106 shares of
common stock. The converted value for each Series B Preferred share is approximately $12.20 or $596,763.
On November 28, 2016, the Company, Acquisition Sub,
U.S. Gold Corp. and Copper King, amended and restated the Merger Agreement, as amended, to adjust certain aspects of the Merger
Consideration and revise other covenants of the Merger Agreement, as amended (the “Third Amended and Restated Agreement”).
The Third Amended and Restated Agreement among other
things:
|
·
|
Increased the Merger Consideration for U.S. Gold holders of record, in the aggregate and on an “as converted” and fully diluted basis, to 48,616,089 shares of common stock and equivalents from 46,241,868 shares of common stock and equivalents. This includes:
|
|
o
|
Reducing the number of shares issuable to holders of U.S. Gold’s Series C Preferred Stock issued in connection with U.S. Gold’s private placement (the “Financing”) to 18,094,362 from 18,181,817;
|
|
o
|
Increasing the maximum number of warrants to purchase the Company’s common stock issuable to the placement agent in the Financing to 1,809,436 five-year cashless warrants from 400,000 warrants;
|
|
o
|
Adding a provision to issue 925,833 five-year options which vest 1/24 each month over the 2 years from the original date of issue to the holders of options issued in connection with the closing of the Keystone Acquisition (as defined in the Merger Agreement);
|
|
·
|
Eliminated a covenant that certain officers and directors of the Company be issued an aggregate of 820,000 shares of restricted stock pursuant to a shareholder approved equity incentive plan, subject to the execution of a two year lockup agreement; and
|
|
·
|
Revised the maximum number of shares the Company shall have outstanding at the closing of the merger, on a fully diluted basis, to 4,945,182 shares of common stock.
|
U.S. GOLD
CORP.
CONSOLIDATED
FINANCIAL STATEMENTS
APRIL 30,
2016 AND 2015
Index to Consolidated
Financial Statements
REPORT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
|
180
|
|
|
CONSOLIDATED BALANCE SHEETS
|
181
|
|
|
CONSOLIDATED
STATEMENTS OF
OPERATIONS
|
182
|
|
|
CONSOLIDATED STATEMENTS OF CHANGES
IN STOCKHOLDERS’ EQUITY
|
183
|
|
|
CONSOLIDATED
STATEMENTS OF
CASH FLOWS
|
184
|
|
|
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
|
185-197
|
REPORT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board
of Directors and Shareholders
of U.S. Gold
Corp.
We
have audited the accompanying consolidated balance sheets of U.S. Gold Corp. (the “Company”) as of April 30, 2016
and 2015, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows for the
years then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted
our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards
require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material
misstatement.
The Company is not required to have, nor were we engaged to perform, an audit of its internal control over
financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of
the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
An audit also
includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our opinion.
In
our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of U.S.
Gold Corp., as of April 30, 2016 and 2015, and the results of its operations and its cash flows for the years then ended in conformity
with accounting principles generally accepted in the United States of America.
The
accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern.
As discussed in Note 2 to the consolidated financial statements, the Company has suffered losses from operations and has negative
working capital. These matters raise substantial doubt about the Company’s ability to continue as a going concern. Management’s
plans concerning these matters are also discussed in Note 2 to the consolidated financial statements. The accompanying consolidated
financial statements do not include any adjustments that might result from the outcome of this uncertainty.
/s/
Marcum LLP
Marcum
llp
New York, NY
December 30, 2016
U.S. GOLD
CORP. AND SUBSIDIARY
CONSOLIDATED
BALANCE SHEETS
|
|
April
30,
|
|
|
2016
|
|
2015
|
|
|
|
|
|
ASSETS
|
|
|
|
|
CURRENT ASSETS:
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
305,661
|
|
|
$
|
42,225
|
|
Prepaid
expenses and other current assets
|
|
|
14,817
|
|
|
|
2,500
|
|
|
|
|
|
|
|
|
|
|
Total
Current Assets
|
|
|
320,478
|
|
|
|
44,725
|
|
|
|
|
|
|
|
|
|
|
NON - CURRENT ASSETS:
|
|
|
|
|
|
|
|
|
Mineral
rights
|
|
|
3,091,738
|
|
|
|
3,091,738
|
|
|
|
|
|
|
|
|
|
|
Total
Assets
|
|
$
|
3,412,216
|
|
|
$
|
3,136,463
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS'
EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES:
|
|
|
|
|
|
|
|
|
Accounts
payable and accrued liabilities
|
|
$
|
93,242
|
|
|
$
|
—
|
|
Accounts
payable and accrued liabilities - related parties
|
|
|
42,466
|
|
|
|
—
|
|
Note
payable - related party
|
|
|
285,000
|
|
|
|
—
|
|
Advances
from a related party
|
|
|
123,624
|
|
|
|
123,624
|
|
|
|
|
|
|
|
|
|
|
Total
Current Liabilities
|
|
|
544,332
|
|
|
|
123,624
|
|
|
|
|
|
|
|
|
|
|
Commitments and Contingencies
(see Note 7)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS' EQUITY
:
|
|
|
|
|
|
|
|
|
Preferred
stock ($0.0001 par value; 50,000,000 authorized none issued and outstanding as of April 30, 2016 and 2015)
|
|
|
—
|
|
|
|
—
|
|
Convertible
Series A Preferred stock ($0.0001 Par Value; 23,000 Shares Authorized; 20,000 and no issued and outstanding as of April 30,
2016 and 2015, respectively)
|
|
|
2
|
|
|
|
—
|
|
Common
stock ($0.0001 Par Value; 200,000,000 Shares Authorized; 2,500,000 and 10,000 shares issued and outstanding as of April 30,
2016 and 2015, respectively)
|
|
|
250
|
|
|
|
1
|
|
Additional
paid-in capital
|
|
|
3,289,228
|
|
|
|
3,027,239
|
|
Accumulated
deficit
|
|
|
(421,596
|
)
|
|
|
(14,401
|
)
|
|
|
|
|
|
|
|
|
|
Total
Stockholders' Equity
|
|
|
2,867,884
|
|
|
|
3,012,839
|
|
|
|
|
|
|
|
|
|
|
Total
Liabilities and Stockholders' Equity
|
|
$
|
3,412,216
|
|
|
$
|
3,136,463
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes
to consolidated financial statements.
|
|
|
|
|
|
|
|
|
U.S. GOLD
CORP. AND SUBSIDIARY
CONSOLIDATED
STATEMENTS OF OPERATIONS
|
|
For
the Year
|
|
For
the Year
|
|
|
Ended
|
|
Ended
|
|
|
April
30, 2016
|
|
April
30, 2015
|
|
|
|
|
|
|
|
|
|
|
Net
revenues
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
Compensation
expenses
|
|
|
260,417
|
|
|
|
—
|
|
Professional
expenses
|
|
|
80,901
|
|
|
|
230
|
|
General
and administrative expenses
|
|
|
65,409
|
|
|
|
14,171
|
|
|
|
|
|
|
|
|
|
|
Total
operating expenses
|
|
|
406,727
|
|
|
|
14,401
|
|
|
|
|
|
|
|
|
|
|
Loss
from operations
|
|
|
(406,727
|
)
|
|
|
(14,401
|
)
|
|
|
|
|
|
|
|
|
|
Other expense:
|
|
|
|
|
|
|
|
|
Interest
expense - related party
|
|
|
(468
|
)
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
Total
other expense
|
|
|
(468
|
)
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
Loss before provision
for income taxes
|
|
|
(407,195
|
)
|
|
|
(14,401
|
)
|
|
|
|
|
|
|
|
|
|
Provision
for income taxes
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
$
|
(407,195
|
)
|
|
$
|
(14,401
|
)
|
|
|
|
|
|
|
|
|
|
Net
loss per common share, basic and diluted
|
|
$
|
(3.42
|
)
|
|
$
|
(1.69
|
)
|
|
|
|
|
|
|
|
|
|
Weighted average common shares
|
|
|
|
|
|
|
|
|
outstanding
- basic and diluted
|
|
|
118,933
|
|
|
|
8,507
|
|
See accompanying
notes to consolidated financial statements.
U.S. GOLD
CORP. AND SUBSIDIARY
CONSOLIDATED
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
For the Years
Ended April 30, 2016 and 2015
|
|
Preferred
Stock - Series A
|
|
Common
Stock
|
|
|
|
|
|
Total
|
|
|
$0.0001
Par Value
|
|
$0.0001
Par Value
|
|
Additional
|
|
Accumulated
|
|
Stockholders'
|
|
|
Shares
|
|
Amount
|
|
Shares
|
|
Amount
|
|
Paid-in
Capital
|
|
Deficit
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, April 30, 2014
|
|
|
—
|
|
|
$
|
—
|
|
|
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of
common stock to a related party for cash
|
|
|
—
|
|
|
|
—
|
|
|
|
5,000
|
|
|
|
—
|
|
|
|
1,525,000
|
|
|
|
—
|
|
|
|
1,525,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock
for the acquisition of mineral rights
|
|
|
—
|
|
|
|
—
|
|
|
|
5,000
|
|
|
|
1
|
|
|
|
1,499,999
|
|
|
|
—
|
|
|
|
1,500,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholder's capital
contribution
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
2,240
|
|
|
|
—
|
|
|
|
2,240
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(14,401
|
)
|
|
|
(14,401
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, April 30, 2015
|
|
|
—
|
|
|
|
—
|
|
|
|
10,000
|
|
|
|
1
|
|
|
|
3,027,239
|
|
|
|
(14,401
|
)
|
|
|
3,012,839
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cancellation of common
stock in exchange of preferred stock
|
|
|
20,000
|
|
|
|
2
|
|
|
|
(10,000
|
)
|
|
|
(1
|
)
|
|
|
(1
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholder's capital
contribution
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
12,240
|
|
|
|
—
|
|
|
|
12,240
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock
for services
|
|
|
—
|
|
|
|
—
|
|
|
|
2,500,000
|
|
|
|
250
|
|
|
|
249,750
|
|
|
|
—
|
|
|
|
250,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(407,195
|
)
|
|
|
(407,195
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, April 30,
2016
|
|
|
20,000
|
|
|
$
|
2
|
|
|
|
2,500,000
|
|
|
$
|
250
|
|
|
$
|
3,289,228
|
|
|
$
|
(421,596
|
)
|
|
$
|
2,867,884
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying
notes to consolidated financial statements.
U.S. GOLD
CORP. AND SUBSIDIARY
CONSOLIDATED
STATEMENTS OF CASH FLOWS
|
|
For
the Year
|
|
For
the Year
|
|
|
Ended
|
|
Ended
|
|
|
April
30, 2016
|
|
April
30, 2015
|
CASH FLOWS FROM OPERATING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
Net
loss
|
|
$
|
(407,195
|
)
|
|
$
|
(14,401
|
)
|
Stock
based compensation
|
|
|
250,000
|
|
|
|
—
|
|
Changes
in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Prepaid
expenses
|
|
|
(12,317
|
)
|
|
|
(2,500
|
)
|
Accounts
payable and accrued liabilities
|
|
|
93,242
|
|
|
|
—
|
|
Accounts
payable and accrued liabilities - related parties
|
|
|
42,466
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
NET
CASH USED IN OPERATING ACTIVITIES
|
|
|
(33,804
|
)
|
|
|
(16,901
|
)
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM INVESTING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
Acquisition
of mineral rights
|
|
|
—
|
|
|
|
(1,591,738
|
)
|
|
|
|
|
|
|
|
|
|
NET
CASH USED IN INVESTING ACTIVITIES
|
|
|
—
|
|
|
|
(1,591,738
|
)
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM FINANCING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
Issuance
of common stock to a related party for cash
|
|
|
—
|
|
|
|
1,525,000
|
|
Stockholder's
capital contribution
|
|
|
12,240
|
|
|
|
2,240
|
|
Proceeds
from issuance of note payable - related party
|
|
|
285,000
|
|
|
|
—
|
|
Advances
from a related party
|
|
|
—
|
|
|
|
123,624
|
|
|
|
|
|
|
|
|
|
|
NET
CASH PROVIDED BY FINANCING ACTIVITIES
|
|
|
297,240
|
|
|
|
1,650,864
|
|
|
|
|
|
|
|
|
|
|
NET INCREASE IN
CASH
|
|
|
263,436
|
|
|
|
42,225
|
|
|
|
|
|
|
|
|
|
|
CASH - beginning of
period
|
|
|
42,225
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
CASH - end of period
|
|
$
|
305,661
|
|
|
$
|
42,225
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL DISCLOSURE
OF CASH FLOW INFORMATION:
|
|
|
|
|
|
|
|
|
Cash
paid for:
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
—
|
|
|
$
|
—
|
|
Income
taxes
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL
DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
|
|
|
|
|
|
|
|
|
Issuance
of common stock for the acquisition of mineral rights
|
|
$
|
—
|
|
|
$
|
1,500,000
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes
to consolidated financial statements.
|
|
|
|
|
|
|
|
|
NOTE 1 - ORGANIZATION
AND DESCRIPTION OF BUSINESS
Organization
U.S. Gold Corp.
(the “Company”) was incorporated under the laws of the State of Nevada on February 14, 2014 under the name of CK Mining
Corp. On March 8, 2016, the Company’s corporate name was changed to U.S. Gold Corp. The Company is an exploration stage
company that owns certain mining leases and other mineral rights comprising the Copper King gold and copper development project
located in the Silver Crown Mining District of southeast Wyoming and certain unpatented mining claims in Meagher County Montana.
On May 31, 2016,
the Board of Directors of the Company approved a forward stock split of the Company’s Common Stock at a ratio of 5-for-1
(the “Forward Stock Split”) including shares issuable upon conversion of the Company’s outstanding convertible
securities. All share and per share values of the Company’s common stock for all periods presented in the accompanying financial
statements are retroactively restated for the effect of the Forward Stock Split in accordance with Staff Accounting Bulletin 4C.
NOTE 2 - SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
Basis of
Presentation and Going Concern
The financial
statements are prepared in accordance with U.S. generally accepted accounting principles (“US GAAP”) and present the
consolidated financial statements of the Company and its wholly-owned subsidiary as of April 30, 2016. In the preparation of the
consolidated financial statements of the Company, intercompany transactions and balances have been eliminated.
As reflected
in the accompanying financial statements, the Company had a net loss and net cash used in operations of approximately $407,000
and $34,000, respectively, for the year ended April 30, 2016. Additionally, the Company had an accumulated deficit
of approximately $422,000 and working capital deficit of approximately $224,000 at April 30, 2016. In addition, the Company will
need to raise capital in order to execute its business plan. These factors raise substantial doubt about the Company’s ability
to continue as a going concern within one year after the issuance date of this financials statements. The ability to continue
as a going concern is dependent upon the Company generating profitable operations in the future and/or to obtain the necessary
financing to meet its obligations and repay its liabilities arising from normal business operations when they come due. The Company’s
ability to raise additional capital through the future issuances of common stock is unknown. The obtainment of additional financing,
the successful development of the Company’s contemplated plan of operations, and its transition, ultimately, to the attainment
of profitable operations are necessary for the Company to continue operations.
Uncertainty
regarding these matters, raises substantial doubt about the Company’s ability to continue as a going concern. The
financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern.
While the Company believes in the viability of its strategy to generate revenues, there can be no assurances to that effect.
Use of Estimates
and Assumptions
In preparing
the financial statements, management is required to make estimates and assumptions that affect the reported amounts of assets
and liabilities as of the date of the balance sheet, and revenues and expenses for the period then ended. Actual results may differ
significantly from those estimates. Significant estimates made by management include, but are not limited to valuation of mineral
rights, the fair value of common stock issued and the valuation of deferred tax assets and liabilities.
NOTE 2 - SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Cash
The Company
considers all highly liquid investments with a maturity of three months or less when acquired to be cash equivalents. At April
30, 2016 and 2015, the Company did not have any cash equivalents. The Company places its cash with a high credit quality financial
institution. The Company’s accounts at this institution are insured by the Federal Deposit Insurance Corporation (“FDIC”)
up to $250,000. At April 30, 2016, the Company had bank balances exceeding the FDIC insurance limit on interest bearing accounts.
To reduce its risk associated with the failure of such financial institutions, the Company evaluates at least annually the rating
of the financial institutions in which it holds deposits.
Fair Value
of Financial Instruments
The Company
adopted Accounting Standards Codification (“ASC”) ASC 820, “Fair Value Measurements and Disclosures” (“ASC
820”), for assets and liabilities measured at fair value on a recurring basis. ASC 820 establishes a common definition for
fair value to be applied to existing US GAAP that requires the use of fair value measurements, establishes a framework for measuring
fair value and expands disclosure about such fair value measurements. The adoption of ASC 820 did not have an impact on the
Company’s financial position or operating results, but did expand certain disclosures.
ASC 820
defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction
between market participants at the measurement date. Additionally, ASC 820 requires the use of valuation techniques that
maximize the use of observable inputs and minimize the use of unobservable inputs.
These inputs
are prioritized below:
Level
1:
|
Observable
inputs such as quoted market prices in active markets for identical assets or liabilities
|
Level
2:
|
Observable market-based
inputs or unobservable inputs that are corroborated by market data
|
Level
3:
|
Unobservable inputs
for which there is little or no market data, which require the use of the reporting entity’s own assumptions.
|
The Company
analyzes all financial instruments with features of both liabilities and equity under the Financial Accounting Standard Board’s
(“FASB”) accounting standard for such instruments. Under this standard, financial assets and liabilities are classified
in their entirety based on the lowest level of input that is significant to the fair value measurement.
The carrying
amounts reported in balance sheets for cash, prepaid expenses, accounts payable and accrued liabilities approximate their estimated
fair market values based on the short-term maturity of these instruments. The advances from a related party approximate its fair
value based on similar terms afforded like-kind transactions.
Prepaid Expenses
and Other Current Assets
Prepaid expenses
and other current assets of $14,817 and $2,500 at April 30, 2016 and 2015, respectively, consist of prepayment for easement fees
which will be amortized within a year.
Mineral Rights
Costs of lease,
exploration, carrying and retaining unproven mineral lease properties are expensed as incurred. The Company expenses all mineral
exploration costs as incurred as it is still in the exploration stage. If the Company identifies proven and probable reserves
in its investigation of its properties and upon development of a plan for operating a mine, it would enter the development stage
and capitalize future costs until production is established.
NOTE 2 - SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Mineral Rights
(continued)
When a property
reaches the production stage, the related capitalized costs are amortized on a units-of-production basis over the proven and probable
reserves following the commencement of production. The Company assesses the carrying costs of the capitalized mineral properties
for impairment under ASC 360-10, “Impairment of long-lived assets”, and evaluates its carrying value under ASC 930-360,
“Extractive Activities - Mining”, annually. An impairment is recognized when the sum of the expected undiscounted
future cash flows is less than the carrying amount of the mineral properties. Impairment losses, if any, are measured as the excess
of the carrying amount of the mineral properties over its estimated fair value.
To date, the
Company has not established the commercial feasibility of any exploration prospects; therefore, all exploration costs are being
expensed, such amounts to date have not been material.
ASC 930-805,
“Extractive Activities-Mining: Business Combinations” (“ASC 930-805”), states that mineral rights consist
of the legal right to explore, extract, and retain at least a portion of the benefits from mineral deposits. Mining assets include
mineral rights. Acquired mineral rights are considered tangible assets under ASC 930-805. ASC 930-805 requires that mineral rights
be recognized at fair value as of the acquisition date. As a result, the direct costs to acquire mineral rights are initially
capitalized as tangible assets. Mineral rights include costs associated with acquiring patented and unpatented mining claims.
ASC 930-805
provides that in fair valuing mineral assets, an acquirer should take into account both:
|
·
|
The
value beyond proven and probable reserves (“VBPP”) to the extent that a market
participant would include VBPP in determining the fair value of the assets.
|
|
·
|
The
effects of anticipated fluctuations in the future market price of minerals in a manner
that is consistent with the expectations of market participants.
|
Income taxes
The Company
accounts for income taxes pursuant to the provision of ASC 740-10, “Accounting for Income Taxes” (“ASC 740-10”),
which requires, among other things, an asset and liability approach to calculating deferred income taxes. The asset and liability
approach requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of temporary
differences between the carrying amounts and the tax bases of assets and liabilities. A valuation allowance is provided to offset
any net deferred tax assets for which management believes it is more likely than not that the net deferred tax asset will not
be realized. Tax positions that meet the more likely than not recognition threshold are measured at the largest amount of tax
benefit that is more than 50 percent likely of being realized upon settlement with the applicable taxing authority.
The Company
follows the provision of ASC 740-10 related to Accounting for Uncertain Income Tax Positions. When tax returns are filed, there
may be uncertainty about the merits of positions taken or the amount of the position that would be ultimately sustained. In accordance
with the guidance of ASC 740-10, the benefit of a tax position is recognized in the financial statements in the period during
which, based on all available evidence, management believes it is more likely than not that the position will be sustained upon
examination, including the resolution of appeals or litigation processes, if any. Tax positions taken are not offset or aggregated
with other positions.
The portion
of the benefit associated with tax positions taken that exceed the amount measured as described above should be reflected as a
liability for uncertain tax benefits in the accompanying balance sheet along with any associated interest and penalties that would
be payable to the taxing authorities upon examination. The Company believes its tax positions are all more likely than not to
be upheld upon examination. As such, the Company has not recorded a liability for uncertain tax benefits.
NOTE 2 - SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Income taxes
(continued)
The Company
has adopted ASC 740-10, “Definition of Settlement”, which provides guidance on how an entity should determine whether
a tax position is effectively settled for the purpose of recognizing previously unrecognized tax benefits and provides that a
tax position can be effectively settled upon the completion and examination by a taxing authority without being legally extinguished.
For tax positions considered effectively settled, an entity would recognize the full amount of tax benefit, even if the tax position
is not considered more likely than not to be sustained based solely on the basis of its technical merits and the statute of limitations
remains open. The federal and state income tax returns of the Company are subject to examination by the Internal Revenue
Service and state taxing authorities, generally for three years after they are filed.
Recent Accounting
Pronouncements
In November
2015, FASB issued ASU 2015-17, “Balance Sheet Classification of Deferred Taxes” (“ASU 2015-17”), which
requires entities to present deferred tax assets and deferred tax liabilities as noncurrent in a classified balance sheet. The
ASU simplifies the current guidance in ASC Topic 740, “Income Taxes”, which requires entities to separately present
deferred tax assets and liabilities as current and noncurrent in a classified balance sheet. ASU 2015-17 is effective for fiscal
years beginning after December 15, 2016, and interim periods within those annual periods. Early adoption is permitted for
all entities as of the beginning of an interim or annual reporting period. The Company does not expect the impact of ASU 2015-17
to be material on the Company’s financial statements.
In February
2016, FASB issued ASU 2016-02, Leases (Topic 842). The new standard requires lessees to apply a dual approach, classifying leases
as either finance or operating leases based on the principle of whether or not the lease is effectively a financed purchase by
the lessee. This classification will determine whether lease expense is recognized based on an effective interest method or on
a straight-line basis over the term of the lease. A lessee is also required to record a right-of-use asset and a lease liability
for all leases with a term of greater than 12 months regardless of their classification. Leases with a term of 12 months or less
will be accounted for similar to existing guidance for operating leases. The new guidance will be effective for annual reporting
periods beginning after December 15, 2018, including interim periods within that reporting period and is applied retrospectively.
Early adoption is permitted. The Company is currently in the process of assessing the impact the adoption of this guidance will
have on the Company’s financial statements.
In March 2016,
FASB issued ASU No. 2016-09, “Compensation - Stock Compensation (Topic 718)”, or ASU 2016-09. ASU 2016-09 was issued
as part of the FASB's simplification initiative focused on improving areas of GAAP for which cost and complexity may be reduced
while maintaining or improving the usefulness of information disclosed within the financial statements. ASU 2016-09 focuses on
simplification specifically with regard to share-based payment transactions, including income tax consequences, classification
of awards as equity or liabilities and classification on the statement of cash flows. The guidance in ASU No. 2016-09 is effective
for fiscal years beginning after December 15, 2016, and interim periods within those annual periods. Early adoption is permitted.
The Company will evaluate the effect of ASU 2016-09 for future periods.
In August 2016, FASB issued
ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of certain cash receipts and cash payments (a consensus of the
emerging issues take force). This ASU addresses the following eight specific cash flow issues: Debt prepayment or debt extinguishment
costs; settlement of zero-coupon debt instruments or other debt instruments with coupon interest rates that are insignificant
in relation to the effective interest rate of the borrowing; contingent consideration payments made after a business combination;
proceeds from the settlement of insurance claims; proceeds from the settlement of corporate-owned life insurance policies (including
bank-owned life insurance policies); distributions received from equity method investees; beneficial interests in securitization
transactions; and separately identifiable cash flows and application of the predominance principle. This guidance will be effective
for the Company on January 1, 2018. The Company does not believe the guidance will have a material impact on its consolidated
financial statements.
NOTE 2 - SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES (continued)
On November
17, the FASB issued ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash. It is intended to reduce diversity in the
presentation of restricted cash and restricted cash equivalents in the statement. The statement requires that restricted cash
and restricted cash equivalents be included as components of total cash and cash equivalents as presented on the statement of
cash flows. Prior to this pronouncement, there was no guidance on how to present restricted cash and cash equivalents. Some entities
already combined them with other components of cash and cash equivalents and the body of the statement reconciled the beginning
balance of the total to the ending balance. Other entities excluded restricted items from the total. As a result, changes in the
balance s of restricted cash and restricted cash equivalents were considered causes of increases to cash and cash equivalents.
A decrease in restricted cash, for example, would result in a source of cash and cash equivalents, increasing the balance. This
pronouncement goes into effect for periods beginning after December 15, 2017.
The Company
does not believe the guidance will have a material impact on its consolidated financial statements.
Other accounting
standards that have been issued or proposed by FASB that do not require adoption until a future date are not expected to have
a material impact on the financial statements upon adoption. The Company does not discuss recent pronouncements that are not anticipated
to have an impact on or are unrelated to its financial condition, results of operations, cash flows or disclosures.
NOTE 3 —
MINERAL RIGHTS
The mineral
properties consist of the Copper King gold and copper development project located in the Silver Crown Mining District of southeast
Wyoming (the “Copper King Project”) and certain unpatented mining claims in Meagher County Montana. On July 2, 2014,
the Company entered into an Asset Purchase Agreement with the seller, Wyoming Gold Mining Company, Inc., whereby the Company acquired
certain mining leases and other mineral rights comprising the Copper King project and certain unpatented mining claims located
in Montana.
Pursuant to
the Asset Purchase Agreement for $3.0 million, the purchase price was a) cash payment in the amount of $1.5 million and b) closing
shares calculated at 50% of the issued and outstanding shares of the Company’s common stock and valued at $1.5 million.
The Company issued 5,000 shares of the Company’s common stock to the seller (see Note 5).
In accordance
with ASC 360-10, “Property, Plant, and Equipment”, assets are recognized based on their cost to the acquiring entity,
which generally includes the transaction costs of the asset acquisition. Accordingly, the Company recorded a total cost of the
acquired mineral properties of $3,091,738 which includes the purchase price ($3,000,000) and related transaction cost.
As of April
30, 2016 and 2015, based on management’s review of the carrying value of mineral rights, management determined that there
is no evidence that the cost of these acquired mineral rights will not be fully recovered and accordingly, the Company has determined
that no adjustment to the carrying value of mineral rights was required.
NOTE 4 —
RELATED PARTY TRANSACTIONS
The principal
stockholder of the Company, Copper King LLC, from time to time, provided advances to the Company for working capital purposes.
Additionally, during fiscal 2014, Copper King LLC also provided advances to the Company for transaction/legal cost related to
the purchase of the mineral properties in July 2014 (see Note 3). At April 30, 2016 and 2015, the Company had a payable to such
related party of $123,624. These advances are non-interest bearing and due on demand.
NOTE 4 —
RELATED PARTY TRANSACTIONS (continued)
On April 19,
2016, the Company issued a 5% Unsecured Promissory Note due July 1, 2016 to the principal stockholder of the Company, Copper King
LLC in the amount of $285,000. This promissory note does not contain any conversion features. At April 30, 2016, the outstanding
principal amount of the note was $285,000 and accrued interest of $468.
Accounts payable
to a related party as of April 30, 2016 was $2,007 and was reflected as accounts payable and accrued liabilities – related
parties in the accompanying unaudited condensed balance sheets. The related party is a managing partner of Copper King LLC.
NOTE 5 —
STOCKHOLDERS’ EQUITY
Preferred
Stock
The Company
is authorized within the limitations and restrictions stated in the Amended and Restated Articles of Incorporation to provide
by resolution or resolutions for the issuance of 50,000,000 shares of Preferred Stock, par value $0.0001 per share in such series
and with such designations, preferences and relative, participating, optional or other special rights and qualifications, limitations
or restrictions as the Company’s Board of Directors establish.
Series A
Convertible Preferred Stock
On April 6,
2016, the Company designated 20,000 shares of Series A Convertible Preferred Stock, par value $0.0001 per share (the “Series
A Preferred Stock”). Each share of Series A Preferred Stock is convertible into shares of the Company’s common
stock with a stated value of $500 per share and an initial conversion price of $0.20 per share of common stock, subject to adjustment
in the event of stock split, stock dividends, and recapitalization or otherwise.
The holders
of the Series A Preferred Stock will vote on an as-converted basis on all matters on which the holders of the common stock
have a right to vote. On June 21, 2016, the Board of Directors of the Company approved to lower the conversion price to $0.16666
and to increase the number of authorized shares to 23,000 Series A Preferred Stock. The Series A Preferred Stock does not
contain any redemption provision. The Series A Preferred Stock are entitled to a liquidation preference equal to the par value
of $0.0001, prior to any payments in respect of the common stock, Series B Preferred Stock, and Series C Preferred Stock.
Common Stock
On June 17,
2014, the Company issued 5,000 shares of its common stock to the principal stockholder of the Company, Copper King LLC for cash
of $1,525,000.
On July 2, 2014,
the Company issued 5,000 shares of its common stock in connection with an Asset Purchase Agreement to acquire certain mineral
rights (see Note 3). The fair value of the 5,000 shares (post-split) of common stock is deemed by the Company to be $1.5 million
in accordance with ASC 845-10, “Nonmonetary Transactions”, the Company determined that if the consideration paid is
not in the form of cash, the measurement may be based on either (i) the cost which is measured based on the fair value of the
consideration given or (ii) the fair value of the assets (or net assets) acquired, whichever is more clearly evident and thus
more reliably measurable. The Company determined that the fair value of the assets acquired was a better indicator and more clearly
evident and thus, more reliably measurable.
On April 6,
2016, the Company issued 20,000 shares of the Company’s Series A Convertible Preferred Stock in exchange for the cancellation
of 10,000 shares of the Company’s common stock. The 20,000 shares of the Company’s Series A Preferred Stock are convertible
into 60,000,000 shares of common stock.
NOTE 5 —
STOCKHOLDERS’ EQUITY (continued)
On April 14,
2016, the Company entered into an employment agreement and issued 2,500,000 shares of the Company’s common stock to the
Chief Executive Officer of the Company. The Company valued these common shares at the fair value of $250,000 or $0.10 per common
share based on the sale of its preferred stock in a private placement at $0.10 per common share. In connection with the issuance
of these common shares, the Company recorded stock based compensation of $250,000 for the year ended April 30, 2016.
Additional
Paid In Capital
During the years
ended April 30, 2016 and 2015, a principal stockholder contributed working capital of $12,240 and $2,240, respectively, which
has been included in additional paid in capital.
NOTE 6 —
NET LOSS PER COMMON SHARE
Net loss per
common share is calculated in accordance with ASC 260, “Earnings Per Share”. Basic loss per share is computed by dividing
net loss available to common stockholder, by the weighted average number of shares of Common Stock outstanding during the period.
The following were excluded from the computation of diluted shares outstanding as they would have had an anti-dilutive impact
on the Company’s net loss. In periods where the Company has a net loss, all dilutive securities are excluded.
|
|
April
30,
2016
|
|
April
30,
2015
|
Common stock equivalents:
|
|
|
|
|
|
|
|
|
Convertible
preferred stock
|
|
|
60,000,000
|
|
|
|
—
|
|
Total
|
|
|
60,000,000
|
|
|
|
—
|
|
NOTE 7 —
COMMITMENTS AND CONTINGENCIES
Executive
Employment Agreements
On April 12,
2016, the Company entered into an employment agreement with its Chief Executive Officer, Mr. Edward Karr. The initial term of
the Agreement is for two years ending on April 30, 2018, with automatic renewals for successive one year terms unless terminated
by written notice at least 90 days prior to the expiration of the term. Mr. Karr is to receive a base salary of $250,000 per year.
The Agreement calls for a bonus of $250,000 to be awarded upon meeting certain milestone goal which is concluding a financing
of at least $10,000,000, a minimum of $2,500,000 of which must come from foreign investors. The bonus may be paid in cash, stock,
or a combination thereof in the discretion of the board. Any bonus for a calendar year shall be subject to Mr. Karr’s continued
employment with the Company through the end of the calendar year in which it is earned and shall be paid after the conclusion
of the calendar year in accordance with the Company’s regular bonus payment policies in the year following the year with
respect to which the bonus relates, and in any case not later than two and one half (2-1/2) months following the end of the year
with respect to which a bonus is earned.
The Company’s
Chief Operating Officer, Mr. David Rector, is employed under an Executive Employment Agreement dated Apri1 14, 2016. The initial
term of the Agreement is for one year, with automatic renewals for successive one year terms unless terminated by written notice
at least 30 days prior to the expiration of the term. Mr. Rector is to receive a base salary of $15,000 per month. The agreement
calls for a bonus in an amount up to the amount of the base salary, to be awarded in the discretion of the board of directors
and to be paid in cash, stock, or a combination thereof in the discretion of the board.
NOTE 7 —
COMMITMENTS AND CONTINGENCIES (continued)
Mining Leases
The Copper King
property position consists of two State of Wyoming Metallic and Non-metallic Rocks and Minerals Mining Leases. These leases were
assigned to the Company in July 2014 through the acquisition of the Copper King project.
The Company’s
rights to the Copper King Project arise under two State of Wyoming mineral leases:
1) State of
Wyoming Mining Lease No. 0-40828 consisting of 640 acres.
2) State of
Wyoming Mining Lease No. 0-40858 consisting of 480 acres.
Lease 0-40828
was renewed in February 2013 for a second ten-year term and Lease 0-40858 was renewed for its second ten-year term in February
2014. Each lease requires an annual payment of $2.00 per acre.
In connection
with the Wyoming Mining Leases, the following production royalties must be paid to the State of Wyoming, although once the project
is in operation, the Board of Land Commissioners has the authority to reduce the royalty payable to the State:
FOB Mine Value per Ton
|
|
Percentage Royalty
|
$00.00 to $50.00
|
|
|
5
|
%
|
$50.01 to $100.00
|
|
|
7
|
%
|
$100.01 to $150.00
|
|
|
9
|
%
|
$150.01 and up
|
|
|
10
|
%
|
The future minimum
lease payments under these mining leases are as follows:
2017
|
|
|
$
|
2,240
|
|
2018
|
|
|
|
2,240
|
|
2019
|
|
|
|
2,240
|
|
2020
|
|
|
|
2,240
|
|
2021
|
|
|
|
2,240
|
|
Thereafter
|
|
|
|
6,720
|
|
T
|
|
|
$
|
17,920
|
|
NOTE 8 - INCOME
TAXES
The Company
has a net operating loss carryforward for tax purposes totaling $171,596 at April 30, 2016, expiring through the year 2036.
The table below
summarizes the differences between the Company’s effective tax rate and the statutory federal rate as follows for the years
ended April 30, 2016 and 2015:
|
|
For
the Year Ended
April 30,
2016
|
|
For
the Year
Ended
April 30,
2015
|
Tax benefit
computed at “expected” statutory rate
|
|
$
|
(138,446
|
)
|
|
$
|
(4,896
|
)
|
Non-deductible expenses:
Stock-based compensation
|
|
|
85,000
|
|
|
|
—
|
|
Increase
in valuation allowance
|
|
|
53,446
|
|
|
|
4,896
|
|
Net
income tax benefit
|
|
$
|
—
|
|
|
$
|
—
|
|
NOTE 8 - INCOME
TAXES (continued)
The Company
has a deferred tax asset which is summarized as follows at April 30, 2016 and 2015:
Deferred tax
assets:
|
|
April
30,
2016
|
|
April
30,
2015
|
Net
operating loss carryover
|
|
$
|
58,342
|
|
|
$
|
4,896
|
|
Less:
valuation allowance
|
|
|
(58,342
|
)
|
|
|
(4,896
|
)
|
Net
deferred tax asset
|
|
$
|
—
|
|
|
$
|
—
|
|
The table below
summarizes the differences between the Companies’ effective tax rate and the statutory federal rate as follows for the period
ended:
|
|
April
30,
2016
|
|
April
30,
2015
|
|
|
|
|
|
Computed "expected" tax expense (benefit)
|
|
|
(34.0
|
)%
|
|
|
(34.0
|
)%
|
Permanent differences
|
|
|
21.0
|
%
|
|
|
0
|
%
|
Change in valuation allowance
|
|
|
13.0
|
%
|
|
|
34.0
|
%
|
|
|
|
|
|
|
|
|
|
Effective tax rate
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
After consideration
of all the evidence, both positive and negative, management has recorded a full valuation allowance at April 30, 2016, due to
the uncertainty of realizing the deferred income tax assets. The valuation allowance was increased by $53,446 and $4,896 in the
years ended April 30, 2016 and 2015, respectively. The Company's 2015 and 2014 tax years remain open to examination by the Internal
Revenue Service (“IRS”). The IRS has the authority to examine those tax years until the applicable statute of
limitations expire.
NOTE 9 —
SUBSEQUENT EVENTS
Preferred
Stock
On July 6, 2016, the Company issued
2,334 shares of Series A Preferred Stock (convertible into 7,000,000 Common Shares) to the Placement Agent for certain financial
advisory services rendered.
On May 26, 2016,
the Company designated 600,000 shares of Series B Convertible Preferred Stock, par value $0.0001 per share (the “Series
B Preferred Stock”). Each share of Series B Preferred Stock is convertible into shares of the Company’s common
stock with a stated value of $1 per share and conversion price of $0.10 per share of common stock, subject to adjustment in the
event of stock split, stock dividends, and recapitalization or otherwise. The holders of the Series B Preferred Stock will
vote on an as-converted basis on all matters on which the holders of the common stock have a right to vote. The Series B
Preferred Stock does not contain any redemption provision. The Series B Preferred Stock (a) are entitled to a liquidation preference
equal to the par value of $0.0001, prior to any payments in respect of the common stock and Series C Preferred Stock, but not
before payments in respect of the Company’s Series A Preferred Stock.
On May 27, 2016,
the Company issued 560,015 shares of its Series B Convertible Preferred Stock, convertible into 5,600,150 shares of its common
stock, for $560,015. The Company received net proceeds of $552,440 after legal fees and related private placement expenses.
NOTE 9 —
SUBSEQUENT EVENTS (continued)
In July 2016,
the Company designated 5,000,000 shares of Series C Convertible Preferred Stock, par value $0.0001 per share (the “Series
C Preferred Stock”). Each share of Series C Preferred Stock is convertible into shares of the Company’s common
stock with a stated value of $2.20 per share and conversion price of $0.22 per share of common stock, subject to adjustment in
the event of stock split, stock dividends, and recapitalization or otherwise. The holders of the Series C Preferred Stock
will vote on an as-converted basis on all matters on which the holders of the common stock have a right to vote. The Series C
Preferred Stock does not contain any redemption provision. On October 5, 2016, the Board of Directors of the Company approved
to increase the number of authorized shares to 5,500,000 shares of Series C Preferred Stock.
On July 29,
2016, the Company completed a private placement to several investors for the purchase of 2,156,688 shares of the Company’s
Series C Convertible Preferred Stock for aggregate net proceeds of approximately $4.06 million. The purchase price of one
share of Series C Preferred Stock was $2.20.
On August 10,
2016, the Company completed a private placement to several investors for the purchase of 1,993,851 shares of the Company’s
Series C Convertible Preferred Stock for aggregate net proceeds of approximately $3.84 million. The purchase price of one
share of Series C Preferred Stock was $2.20.
On August 31,
2016, the Company completed a private placement to several investors for the purchase of 849,445 shares of the Company’s
Series C Convertible Preferred Stock for aggregate net proceeds of approximately $1.63 million. The purchase price of one
share of Series C Preferred Stock was $2.20.
In connection
with these three private placements, certain Financial Industry Regulatory Authority (“FINRA”) broker-dealers acted
on behalf of the Company and were paid aggregate cash commissions of approximately $1,345,000. The Company also paid legal fees
and related private placement expenses of approximately $166,000.
The Company
is obligated to issue 5 year warrants to acquire an aggregate of 5,000,000 shares of common stock at an exercise price of $0.22
to a certain FINRA broker-dealer who acted on behalf of the Company.
Preferred
Stock (continued)
On October 6,
2016, the Company completed a private placement to several investors for the purchase of 428,309 shares of the Company’s
Series C Convertible Preferred Stock for aggregate net proceeds of approximately $824,000. The purchase price of one share
of Series C Preferred Stock was $2.20.
In connection
with this private placement, certain FINRA broker-dealers acted on behalf of the Company and were paid aggregate cash commissions
of approximately $113,000. The Company also paid legal fees and related private placement expenses of approximately $5,000.
The Company
is obligated to issue 5 year warrants to acquire an aggregate of 428,309 shares of common stock at an exercise price of $0.22
to a certain FINRA broker-dealer who acted on behalf of the Company. The Company intends to issue these warrants upon closing
the Merger Agreement with Dataram Corporation.
Common Stock
for Services
In May 2016,
the Company issued an aggregate of 750,000 shares of the Company’s common stock to the Chief Operating Officer and a director
of the Company for services rendered to the Company. The Company valued these common shares at the fair value of $75,000 or $0.10
per common share based on the sale of its preferred stock in a private placement at $0.10 per common share.
In May 2016,
the Company issued 1,500,000 shares of the Company’s common stock to a consultant for services rendered to the Company.
These shares were issued directly and not pursuant to any formal equity compensation plan.
NOTE 9 —
SUBSEQUENT EVENTS (continued)
The Company
valued these common shares at the fair value of $150,000 or $0.10 per common share based on the sale of its preferred stock in
a private placement at $0.10 per common share.
Mineral Rights
The Company,
through its wholly-owned subsidiary, U.S. Gold Acquisition, Inc., acquired the mining claims comprising the Keystone Project on
May 27, 2016 from Nevada Gold Ventures, LLC (“Nevada Gold”) and Americas Gold Exploration, Inc. (collectively the
“Sellers”) under the terms of the Purchase and Sale Agreement. At the time of purchase, the Keystone Project consisted
of 284 unpatented lode mining claims situated in Eureka County, Nevada. The purchase price for the Keystone Property consisted
of the following: (a) cash payment in the amount of $250,000, and (b) the closing shares which is equivalent to 5,550,000 shares
of the Company’s common stock. The Company valued these common shares at the fair value of $555,000 or $0.10 per common
share based on the sale of its preferred stock in a private placement at $0.10 per common share.
In addition,
the Sellers were granted an aggregate of 2,777,500 five-year option to purchase shares of the Company’s common stock at
an exercise price of 0.30 per share. The options shall vest over a period of two years whereby 1/24 of the options shall vest
and become exercisable each month for the next 24 months. The 2,777,500 options were valued on the grant date at approximately
$0.07 per option or a total of $184,968 using a Black-Scholes option pricing model with the following assumptions: stock price
of $0.10 per share (based on the sale of its preferred stock in a private placement at $0.10), volatility of 112% (based from
volatilities of similar companies), expected term of 5 years, and a risk free interest rate of 1.39%. The options are non-forfeitable
and are not subject to obligations or service requirements. The fair value of the options was included in the acquisition cost
of the Keystone Project
Some of the
Keystone claims are subject to pre-existing net smelter royalty (“NSR”) obligations. In addition, under the terms
of the Purchase and Sale Agreement, Nevada Gold retained additional NSR rights of 0.5% with regard to certain claims and 3.5%
with regard to certain other claims. Under the terms of the Purchase and Sale Agreement, the Company may buy down one percent
(1%) of the royalty to Nevada Gold at any time through the fifth anniversary of the closing date for $2,000,000. In addition,
the Company may buy down an additional one percent (1%) of the royalty anytime through the eighth anniversary of the closing date
for $5,000,000.
Executive
Employment Agreements
On June 27,
2016, the Company entered into an employment agreement with its Chief Geologist, Mr. David Mathewson. The initial term of the
Agreement is for one year, with automatic renewals for successive one year terms unless terminated by written notice at least
30 days prior to the expiration of the term by either party.
Mr. Mathewson
is to receive a base salary of $200,000 per year. The base salary shall be payable as follows: (a) 25% of the base salary shall
be payable in equal monthly cash installments and (b) the remaining 75% of the base salary shall be payable in equal monthly installments
in the form of common stock of the Company. Each installment of common stock shall be issued on the first business day of the
months and shall be valued at the market price on the trading day immediately prior to the date of issuance. Market price is the
closing bid price on the principal securities exchange or trading market. Mr. Mathewson shall be entitled to receive bonus to
be paid in cash, stock, or a combination thereof and equity awards.
Operating
Lease
The Company
leases its corporate facility in Elko, Nevada under operating leases for a period of 12 months commencing in July 2016 and expiring
in July 2017. The Company shall pay a monthly base rent of $1,000 plus a pro rata share of operating expenses.
NOTE 9 —
SUBSEQUENT EVENTS (continued)
Merger Agreement
On June 13,
2016, the Company and Dataram Corporation, a Nevada corporation ("Dataram") entered into an Agreement and Plan of Merger
(the "Merger Agreement") with Dataram’s wholly owned subsidiary, Dataram Acquisition Sub, Inc., a Nevada corporation
(“Acquisition Sub”), Upon closing of the transactions contemplated under the Merger Agreement (the "Merger"),
the Company will merge with and into Acquisition Sub with the Company as the surviving corporation. The closing of
the Merger is subject to customary closing conditions, including, among other things:
|
·
|
the
approval of Dataram’s shareholders holding a majority of the Dataram’s outstanding
voting capital to issue the Merger Consideration (as defined below) pursuant to the continued
listing standards of The NASDAQ Stock Market LLC;
|
|
·
|
the
approval of the Dataram’s shareholders holding a majority of Dataram’s outstanding
voting capital to increase the number of shares of authorized common stock;
|
|
·
|
the
closing by the Company of a financing pursuant to which it receives at least $3 million
in net proceeds from the sale of its securities (the “U.S. Gold Financing”);
|
|
·
|
the
closing by the Company of the acquisition of certain mining claims related to a gold
development project in Eureka County, Nevada (the “Keystone Project”);
|
|
·
|
the
receipt by Dataram of a fairness opinion with respect to the Merger and the Merger Consideration;
and
|
|
·
|
the
Dataram’s Board of Directors shall have declared, as a special dividend, a right
entitling each stockholder as of a record date (which shall be no less than five business
days prior to the closing of the Merger) to a proportionate ownership interest, record
or beneficial, equal to their ownership interest in Dataram, of certain pre-Merger Dataram
assets or the proceeds therefrom, as, when and if Dataram’s Board of Directors
elects to divest such assets within 18 months from the closing of the Merger.
|
Pursuant to
the terms and conditions of the Merger Agreement, at the closing of the Merger, the holders of the Company’s common stock,
Series A Preferred Stock and Series B Preferred Stock will be converted into the right to receive shares of Dataram’s common
stock, par value $0.001 per share (the “Common Stock”) or, at the election of the Company’s stockholder, shares
of Dataram’s newly designated 0% Series C Convertible Preferred Stock, par value $0.001 per share (the “Series C Preferred
Stock), which are convertible into shares of Common Stock (collectively, the “Merger Consideration”). On July 6, 2016,
Dataram filed a certificate of amendment (the “Amendment”) to its Articles of Incorporation with the Secretary of
State of Nevada in order to effectuate a reverse stock split of the Dataram’s issued and outstanding Common Stock per share
on a one (1) for three (3) basis, effective on July 8, 2016 (the “Reverse Stock Split”).
The Merger Consideration
shall be allocated as follows and is presented below in terms of Dataram’s Common Stock and reflects the effect of the 1
for 3 Reverse Stock Split in July 2016:
|
·
|
22,333,333
shares of Dataram’s Common Stock shall be issued to the holders of the Company’s
Series A Preferred Stock;
|
|
·
|
1,866,717
shares of Dataram’s Common Stock shall be issued to the holders of the Company’s
Series B Preferred Stock;
|
NOTE 9 —
SUBSEQUENT EVENTS (continued)
|
·
|
Up
to 15,151,515 shares of Dataram’s Common Stock shall be issued to holders of the
Company’s common stock issued in connection with the U.S. Gold Financing;
|
|
·
|
A
minimum of 1,333,333 and a maximum of 2,333,333 shares of Dataram’s Common Stock
and warrants to purchase up to 250,000 shares of Dataram’s Common Stock (or such
lesser amount depending on the size of the U.S. Gold Financing) shall be issued to the
placement agent in the U.S. Gold Financing;
|
|
·
|
1,850,000
shares of Dataram’s Common Stock shall be issued to the holders of the Company’s
common stock issued in connection with the closing of the acquisition of the Keystone
Project;
|
|
·
|
1,583,333
shares of Dataram’s Common Stock shall be issued to certain incoming officers and
consultants of the Company pursuant to a shareholder approved equity incentive plan of
Dataram (the “Management Shares”); and
|
|
·
|
925,833
of Dataram’s options shall be issued to the holders of the Company’s outstanding
stock options issued in connection with the closing of the acquisition of the Keystone
Project.
|
Upon closing
of the Merger and as a result of the transactions contemplated by the Merger Agreement, Dataram’s pre-Merger stockholders
are anticipated to own between approximately 8.6% and 11.0% of the outstanding Common Stock on an “as converted” basis.
The Company’s
Chief Executive Officer and Director, Mr. Edward Karr, also serves as a member of the Board of Directors of Dataram.
On November
28, 2016, the Company, Dataram Corporation, Dataram Acquisition Sub, Inc., and Copper King, LLC, a principal stockholder of the
Company, amended and restated that certain merger agreement between the parties dated as of June 13, 2016 which was amended and
restated on July 29, 2016 (the “Amended and Restated Merger Agreement”) and amended and restated on September 14,
2016 (the “Second Amended and Restated Merger Agreement”).
The parties
agreed to execute the Third and Final Amended and Restated Merger Agreement in order to, among other things:
|
·
|
Increase
the Merger Consideration for the Company’s holders of record, in the aggregate
and on an “as converted” and fully diluted basis, to 48,616,089 shares of
common stock and equivalents from 46,241,868 shares of common stock and equivalents.
This includes:
|
|
o
|
Reducing
the number of shares issuable to holders of the Company’s Series C Preferred Stock
issued in connection with the Company’s holders private placement (the “Financing”)
to 18,094,362 from 18,181,817;
|
|
o
|
Increasing
the maximum number of warrants to purchase Dataram’s common stock issuable to the
placement agent in the Financing to 1,809,436 five-year cashless warrants from 400,000
warrants;
|
|
o
|
Adding
a provision to issue 925,833 five-year options which vest 1/24 each month over the 2
years from the original date of issue to the holders of options issued in connection
with the closing of the Keystone Acquisition;
|
|
o
|
Eliminate
a covenant that certain officers and directors of Dataram be issued an aggregate of 820,000
shares of restricted stock pursuant to a shareholder approved equity incentive plan,
subject to the execution of a two year lockup agreement; and
|
|
o
|
Revise
the maximum number of shares Dataram shall have outstanding at the closing of the merger,
on a fully diluted basis, to 4,945,182 shares of common stock and equivalents.
|
U.S. GOLD
CORP. AND SUBSIDIARY
FINANCIAL
STATEMENTS
OCTOBER 31,
2016 AND 2015
Index to Unaudited
Condensed Consolidated Financial Statements
CONDENSED
CONSOLIDATED BALANCE SHEETS AT OCTOBER 31, 2016 (UNAUDITED) AND APRIL 30, 2016
|
199
|
|
|
UNAUDITED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE AND SIX MONTHS ENDED OCTOBER 31, 2016 AND 2015
|
200
|
|
|
UNAUDITED
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED OCTOBER 31, 2016 AND 2015
|
201
|
|
|
NOTES
TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
|
202
|
U.S. GOLD
CORP. AND SUBSIDIARY
CONDENSED
CONSOLIDATED BALANCE SHEETS
|
|
October
31
|
|
April
30,
|
|
|
2016
|
|
2016
|
|
|
(Unaudited)
|
|
|
|
|
|
|
|
ASSETS
|
|
|
|
|
CURRENT ASSETS:
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
9,000,771
|
|
|
$
|
305,661
|
|
Prepaid
expenses
|
|
|
341,523
|
|
|
|
14,817
|
|
|
|
|
|
|
|
|
|
|
Total
Current Assets
|
|
|
9,342,294
|
|
|
|
320,478
|
|
|
|
|
|
|
|
|
|
|
NON - CURRENT ASSETS:
|
|
|
|
|
|
|
|
|
Reclamation
bond deposit
|
|
|
16,684
|
|
|
|
—
|
|
Mineral
rights
|
|
|
4,120,623
|
|
|
|
3,091,738
|
|
|
|
|
|
|
|
|
|
|
Total
Non - Current Assets
|
|
|
4,137,307
|
|
|
|
3,091,738
|
|
|
|
|
|
|
|
|
|
|
Total
Assets
|
|
$
|
13,479,601
|
|
|
$
|
3,412,216
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS'
EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES:
|
|
|
|
|
|
|
|
|
Accounts
payable and accrued liabilities
|
|
$
|
115,010
|
|
|
$
|
93,242
|
|
Accounts
payable and accrued liabilities - related party
|
|
|
2,431
|
|
|
|
42,466
|
|
Note
payable - related party
|
|
|
|
|
|
|
|
|
Note
payable - related party
|
|
|
—
|
|
|
|
285,000
|
|
Due
to a related party
|
|
|
—
|
|
|
|
123,624
|
|
|
|
|
|
|
|
|
|
|
Total
Liabilities
|
|
|
117,441
|
|
|
|
544,332
|
|
|
|
|
|
|
|
|
|
|
Commitments and Contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS' EQUITY
:
|
|
|
|
|
|
|
|
|
Preferred
stock, $0.0001 par value; 50,000,000 authorized
|
|
|
|
|
|
|
|
|
Convertible
Series A Preferred stock ($0.0001 Par Value; 23,000 Shares Authorized;20,000 and no issued and outstanding as of October 31,
2016 and April 30, 2016)
|
|
|
2
|
|
|
|
2
|
|
Convertible
Series B Preferred stock ($0.0001 Par Value; 600,000 Shares Authorized;562,349 and no issued and outstanding as of October
31, 2016 and April 30, 2016)
|
|
|
56
|
|
|
|
—
|
|
Convertible
Series C Preferred stock ($0.0001 Par Value; 5,500,000 Shares Authorized;5,428,293 and no issued and outstanding as of October
31, 2016 and April 30, 2016)
|
|
|
543
|
|
|
|
—
|
|
Common
stock ($0.0001 Par Value; 200,000,000 Shares Authorized;10,300,000 and 2,500,000 shares issued and outstanding as of October
31, 2016 and April 30, 2016)
|
|
|
1,030
|
|
|
|
250
|
|
Additional
paid-in capital
|
|
|
15,818,643
|
|
|
|
3,289,228
|
|
Accumulated
deficit
|
|
|
(2,458,114
|
)
|
|
|
(421,596
|
)
|
|
|
|
|
|
|
|
|
|
Total
Stockholders' Equity
|
|
|
13,362,160
|
|
|
|
2,867,884
|
|
|
|
|
|
|
|
|
|
|
Total
Liabilities and Stockholders' Equity
|
|
$
|
13,479,601
|
|
|
$
|
3,412,216
|
|
See accompanying
notes to unaudited condensed consolidated financial statements.
U.S. GOLD
CORP. AND SUBSIDIARY
CONDENSED
CONSOLIDATED STATEMENTS OF OPERATIONS
|
|
For
the
Three Months
|
|
For
the
Three Months
|
|
For
the
Six Months
|
|
For
the
Six Months
|
|
|
Ended
|
|
Ended
|
|
Ended
|
|
Ended
|
|
|
October
31,
2016
|
|
October
31,
2015
|
|
October
31,
2016
|
|
October
31,
2015
|
|
|
(Unaudited)
|
|
(Unaudited)
|
|
(Unaudited)
|
|
(Unaudited)
|
|
|
|
|
|
|
|
|
|
Net
revenues
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Compensation
and related taxes
|
|
|
201,908
|
|
|
|
—
|
|
|
|
451,013
|
|
|
|
—
|
|
Exploration
costs
|
|
|
125,492
|
|
|
|
—
|
|
|
|
236,738
|
|
|
|
—
|
|
Professional
fees
|
|
|
302,125
|
|
|
|
—
|
|
|
|
1,180,214
|
|
|
|
—
|
|
General
and administrative expenses
|
|
|
64,578
|
|
|
|
2,177
|
|
|
|
164,311
|
|
|
|
7,613
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
operating expenses
|
|
|
694,103
|
|
|
|
2,177
|
|
|
|
2,032,276
|
|
|
|
7,613
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss
from operations
|
|
|
(694,103
|
)
|
|
|
(2,177
|
)
|
|
|
(2,032,276
|
)
|
|
|
(7,613
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other expense:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
expense - related party
|
|
|
—
|
|
|
|
—
|
|
|
|
(4,242
|
)
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
other expense
|
|
|
—
|
|
|
|
—
|
|
|
|
(4,242
|
)
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before provision
for income taxes
|
|
|
(694,103
|
)
|
|
|
(2,177
|
)
|
|
|
(2,036,518
|
)
|
|
|
(7,613
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision
for income taxes
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
$
|
(694,103
|
)
|
|
$
|
(2,177
|
)
|
|
$
|
(2,036,518
|
)
|
|
$
|
(7,613
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss per common share, basic and diluted
|
|
$
|
(0.07
|
)
|
|
$
|
(0.22
|
)
|
|
$
|
(0.22
|
)
|
|
$
|
(0.76
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average common shares outstanding - basic and diluted
|
|
|
10,300,000
|
|
|
|
10,000
|
|
|
|
9,265,489
|
|
|
|
10,000
|
|
See accompanying
notes to unaudited condensed consolidated financial statements.
U.S. GOLD
CORP. AND SUBSIDIARY
CONDENSED
CONSOLIDATED STATEMENTS OF CASH FLOWS
|
|
For
the
Six Months
|
|
For
the
Six Months
|
|
|
Ended
|
|
Ended
|
|
|
October
31,
2016
|
|
October
31,
2015
|
|
|
(Unaudited)
|
|
(Unaudited)
|
CASH FLOWS FROM OPERATING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
Net
loss
|
|
$
|
(2,036,518
|
)
|
|
$
|
(7,613
|
)
|
Adjustments
to reconcile net loss to net cash used in operating activities:
|
|
|
|
|
|
|
|
|
Stock
based compensation
|
|
|
837,500
|
|
|
|
—
|
|
Changes
in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Prepaid
expenses
|
|
|
(239,206
|
)
|
|
|
(6,667
|
)
|
Reclamation
bond deposit
|
|
|
(16,684
|
)
|
|
|
—
|
|
Accounts
payable and accrued liabilities
|
|
|
21,768
|
|
|
|
—
|
|
Accounts
payable and accrued liabilities - related parties
|
|
|
(40,035
|
)
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
NET
CASH USED IN OPERATING ACTIVITIES
|
|
|
(1,473,175
|
)
|
|
|
(14,280
|
)
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM INVESTING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
Acquisition
of mineral rights
|
|
|
(288,917
|
)
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
NET
CASH USED IN INVESTING ACTIVITIES
|
|
|
(288,917
|
)
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM FINANCING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
Stockholder's
capital contribution
|
|
|
—
|
|
|
|
10,000
|
|
Repayments
to related party for advances
|
|
|
(123,624
|
)
|
|
|
—
|
|
Issuance
of preferred stock, net of issuance cost
|
|
|
10,865,826
|
|
|
|
—
|
|
Proceeds
from issuance of note payable - related party
|
|
|
(285,000
|
)
|
|
|
—
|
|
Advances
from a related party
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
NET
CASH PROVIDED BY FINANCING ACTIVITIES
|
|
|
10,457,202
|
|
|
|
10,000
|
|
|
|
|
|
|
|
|
|
|
NET INCREASE (DECREASE)
IN CASH
|
|
|
8,695,110
|
|
|
|
(4,280
|
)
|
|
|
|
|
|
|
|
|
|
CASH - beginning of
period
|
|
|
305,661
|
|
|
|
42,225
|
|
|
|
|
|
|
|
|
|
|
CASH - end of period
|
|
$
|
9,000,771
|
|
|
$
|
37,945
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL DISCLOSURE
OF CASH FLOW INFORMATION:
|
|
|
|
|
|
|
|
|
Cash
paid for:
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
4,242
|
|
|
$
|
—
|
|
Income
taxes
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL DISCLOSURE
OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
|
|
|
|
|
|
|
|
|
Issuance
of common stock for the acquisition of mineral rights
|
|
$
|
555,000
|
|
|
$
|
—
|
|
Grant
of stock options for the acquisition of mineral rights
|
|
$
|
184,968
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
See accompanying
notes to unaudited condensed consolidated financial statements.
NOTE 1 - ORGANIZATION AND DESCRIPTION
OF BUSINESS
Organization
U.S. Gold Corp. (the “Company”)
was incorporated under the laws of the State of Nevada on February 14, 2014 under the name of CK Mining Corp. On March 8, 2016,
the Company’s corporate name was changed to U.S. Gold Corp.
The Company is a gold and precious
metals exploration company pursuing exploration and development opportunities primarily in Nevada and Wyoming. None of the Company’s
properties contain proven and probable reserves, and all of the Company’s activities on all of its properties are exploratory
in nature.
A wholly-owned subsidiary, U.S. Gold
Acquisition, Inc., a Nevada corporation, was formed by the Company on April 22, 2016.
On May 31, 2016, the Board of Directors
of the Company approved a forward stock split of the Company’s Common Stock at a ratio of 5-for-1 (the “Forward Stock
Split”) including shares issuable upon conversion of the Company’s outstanding convertible securities. All share and
per share values of the Company’s common stock for all periods presented in the accompanying financial statements are retroactively
restated for the effect of the Forward Stock Split in accordance with Staff Accounting Bulletin 4C.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES
Basis of Presentation and Going
Concern
The accompanying interim unaudited
condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in
the United States of America and the rules and regulations of the United States Securities and Exchange Commission for interim
financial information, which includes condensed consolidated financial statements and present the consolidated financial statements
of the Company and its wholly-owned subsidiary as of October 31, 2016. All intercompany transactions and balances have been eliminated.
The accounting policies and procedures used in the preparation of these unaudited condensed consolidated financial statements
have been derived from the audited financial statements of the Company for the year ended April 30, 2016, which are contained
elsewhere in the Form S-4 Registration Statement. The consolidated balance sheet as of April 30, 2016 was derived from those financial
statements. It is management's opinion that all material adjustments (consisting of normal recurring adjustments) have been made,
which are necessary for a fair financial statement presentation. The results for the interim period are not necessarily indicative
of the results to be expected for the year ending April 30, 2017.
As reflected in the accompanying
financial statements, the Company had a net loss and net cash used in operations of approximately $2.04 million and $1.5 million,
respectively, for the six months ended October 31, 2016. Additionally, the Company had an accumulated deficit of approximately
$2.5 million at October 31, 2016. In addition, the Company will need to raise capital in order to execute its business plan. These
factors raise substantial doubt about the Company’s ability to continue as a going concern. The ability to continue as a
going concern is dependent upon the Company generating profitable operations in the future and/or to obtain the necessary financing
to meet its obligations and repay its liabilities arising from normal business operations when they come due. The Company’s
ability to raise additional capital through the future issuances of common stock is unknown. The obtainment of additional financing,
the successful development of the Company’s contemplated plan of operations, and its transition, ultimately, to the attainment
of profitable operations are necessary for the Company to continue operations. Uncertainty regarding these matters, raises substantial
doubt about the Company’s ability to continue as a going concern. The financial statements do not include any
adjustments that might be necessary if the Company is unable to continue as a going concern. While the Company believes
in the viability of its strategy to generate revenues, there can be no assurances to that effect.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES (continued)
Use of Estimates and Assumptions
In preparing the unaudited condensed
consolidated financial statements, management is required to make estimates and assumptions that affect the reported amounts of
assets and liabilities as of the date of the balance sheet, and revenues and expenses for the period then ended. Actual results
may differ significantly from those estimates. Significant estimates made by management include, but are not limited to valuation
of mineral rights, stock-based compensation, the fair value of common stock issued and the valuation of deferred tax assets and
liabilities.
Cash
The Company considers all highly
liquid investments with a maturity of three months or less when acquired to be cash equivalents. At October 31, 2016 and April
30, 2016, the Company did not have any cash equivalents. The Company places its cash with a high credit quality financial institution.
The Company’s accounts at this institution are insured by the Federal Deposit Insurance Corporation (“FDIC”)
up to $250,000. At October 31, 2016 and April 30, 2016, the Company had bank balances exceeding the FDIC insurance limit on interest
bearing accounts. To reduce its risk associated with the failure of such financial institutions, the Company evaluates at least
annually the rating of the financial institutions in which it holds deposits.
Fair Value of Financial Instruments
The Company adopted Accounting Standards
Codification (“ASC”) ASC 820, “Fair Value Measurements and Disclosures” (“ASC 820”), for assets
and liabilities measured at fair value on a recurring basis. ASC 820 establishes a common definition for fair value to be applied
in accordance with accounting principles generally accepted in the United States of America that requires the use of fair value
measurements, establishes a framework for measuring fair value and expands disclosure about such fair value measurements. The
adoption of ASC 820 did not have an impact on the Company’s financial position or operating results, but did expand
certain disclosures.
ASC 820 defines fair value as
the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants
at the measurement date. Additionally, ASC 820 requires the use of valuation techniques that maximize the use of observable
inputs and minimize the use of unobservable inputs.
These inputs are prioritized below:
Level
1:
|
Observable inputs such as quoted
market prices in active markets for identical assets or liabilities
|
Level 2:
|
Observable market-based inputs or unobservable
inputs that are corroborated by market data
|
Level 3:
|
Unobservable inputs for which there is
little or no market data, which require the use of the reporting entity’s own assumptions.
|
The Company analyzes all financial
instruments with features of both liabilities and equity under the Financial Accounting Standard Board’s (“FASB”)
accounting standard for such instruments. Under this standard, financial assets and liabilities are classified in their entirety
based on the lowest level of input that is significant to the fair value measurement.
The carrying amounts reported in
the unaudited condensed consolidated balance sheets for cash, prepaid expenses, accounts payable and accrued liabilities approximate
their estimated fair market values based on the short-term maturity of these instruments.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES (continued)
Mineral Rights
Costs of lease, exploration, carrying
and retaining unproven mineral lease properties are expensed as incurred. The Company expenses all mineral exploration costs as
incurred as it is still in the exploration stage. If the Company identifies proven and probable reserves in its investigation
of its properties and upon development of a plan for operating a mine, it would enter the development stage and capitalize future
costs until production is established.
When a property reaches the production
stage, the related capitalized costs are amortized on a units-of-production basis over the proven and probable reserves following
the commencement of production. The Company assesses the carrying costs of the capitalized mineral properties for impairment under
ASC 360-10, “Impairment of long-lived assets”, and evaluates its carrying value under ASC 930-360, “Extractive
Activities - Mining”, annually. An impairment is recognized when the sum of the expected undiscounted future cash
flows is less than the carrying amount of the mineral properties. Impairment losses, if any, are measured as the excess of the
carrying amount of the mineral properties over its estimated fair value.
To date, the Company has not established
the commercial feasibility of any exploration prospects; therefore, all exploration costs are being expensed.
ASC 930-805, “Extractive Activities-Mining:
Business Combinations” (“ASC 930-805”), states that mineral rights consist of the legal right to explore, extract,
and retain at least a portion of the benefits from mineral deposits. Mining assets include mineral rights. Acquired mineral rights
are considered tangible assets under ASC 930-805. ASC 930-805 requires that mineral rights be recognized at fair value as of the
acquisition date. As a result, the direct costs to acquire mineral rights are initially capitalized as tangible assets. Mineral
rights include costs associated with acquiring patented and unpatented mining claims.
ASC 930-805 provides that in fair
valuing mineral assets, an acquirer should take into account both:
|
•
|
The value beyond proven
and probable reserves (“VBPP”) to the extent that a market participant would
include VBPP in determining the fair value of the assets.
|
|
•
|
The effects of anticipated
fluctuations in the future market price of minerals in a manner that is consistent with
the expectations of market participants.
|
Share-Based Compensation
Share-based compensation is accounted
for based on the requirements of ASC 718 which requires recognition in the financial statements of the cost of employee and director
services received in exchange for an award of equity instruments over the period the employee or director is required to perform
the services in exchange for the award (presumptively, the vesting period). ASC 718 also requires measurement of the cost of employee
and director services received in exchange for an award based on the grant-date fair value of the award. Pursuant to ASC 505-50,
for share-based payments to consultants and other third-parties, compensation expense is determined at the “measurement
date.” The expense is recognized over the vesting period of the award. Until the measurement date is reached, the total
amount of compensation expense remains uncertain.
Recent Accounting Pronouncements
Other accounting standards that have
been issued or proposed by FASB that do not require adoption until a future date are not expected to have a material impact on
the financial statements upon adoption. The Company does not discuss recent pronouncements that are not anticipated to have an
impact on or are unrelated to its financial condition, results of operations, cash flows or disclosures.
NOTE 3 — MINERAL RIGHTS
Copper King Project
The mineral properties consist of
the Copper King gold and copper development project located in the Silver Crown Mining District of southeast Wyoming (the “Copper
King Project”) and certain unpatented mining claims in Meagher County Montana. On July 2, 2014, the Company entered into
an Asset Purchase Agreement whereby the Company acquired certain mining leases and other mineral rights comprising the Copper
King project and certain unpatented mining claims located in Montana. Pursuant to the Asset Purchase Agreement, the purchase price
was (a) cash payment in the amount of $1.5 million and (b) closing shares calculated at 50% of the issued and outstanding shares
of the Company’s common stock and valued at $1.5 million. The Company issued 5,000 shares of the Company’s common
stock to the seller (see Note 5).
Keystone Project
The Company, through its wholly-owned
subsidiary, U.S. Gold Acquisition, Inc., acquired the mining claims comprising the Keystone Project on May 27, 2016 from Nevada
Gold Ventures, LLC (“Nevada Gold”) and Americas Gold Exploration, Inc. (collectively the “Sellers”) under
the terms of the Purchase and Sale Agreement (the “ Purchase and Sale Agreement). At the time of purchase, the Keystone
Project consisted of 284 unpatented lode mining claims situated in Eureka County, Nevada. The purchase price for the Keystone
Property consisted of the following: (a) cash payment in the amount of $250,000, (b) the closing shares which is equivalent to
5,550,000 shares of the Company’s common stock and (c) an aggregate of 2,777,500 five-year options to purchase shares of
the Company’s common stock at an exercise price of 0.30 per share.
The Company valued the common shares
at the fair value of $555,000 or $0.10 per common share based on the contemporaneous sale of its preferred stock in a private
placement at $0.10 per common share. The 2,777,500 options were valued at $184,968 (see Note 5). The options shall vest over a
period of two years whereby 1/24 of the options shall vest and become exercisable each month for the next 24 months. The options
are non-forfeitable and are not subject to obligations or service requirements.
Accordingly, the Company recorded
a total cost of the acquired mineral properties of $1,028,885 which includes the purchase price ($989,968) and related transaction
cost ($38,917).
Some of the Keystone claims are subject
to pre-existing net smelter royalty (“NSR”) obligations. In addition, under the terms of the Purchase and Sale Agreement,
Nevada Gold retained additional NSR rights of 0.5% with regard to certain claims and 3.5% with regard to certain other claims.
Under the terms of the Purchase and Sale Agreement, the Company may buy down one percent (1%) of the royalty from Nevada Gold
at any time through the fifth anniversary of the closing date for $2,000,000. In addition, the Company may buy down an additional
one percent (1%) of the royalty anytime through the eighth anniversary of the closing date for $5,000,000.
As of the date of these unaudited
condensed consolidated financial statements, the Company has not established any proven or probable reserves on its mineral properties
and has incurred only acquisition costs and exploration costs.
Mineral properties consisted of the
following:
|
|
October
31,
2016
|
|
April
30,
2016
|
Copper King
project
|
|
$
|
3,091,738
|
|
|
$
|
3,091,738
|
|
Keystone
project
|
|
|
1,028,885
|
|
|
|
—
|
|
Total
|
|
$
|
4,120,623
|
|
|
$
|
3,091,738
|
|
NOTE 4 — RELATED PARTY TRANSACTIONS
The principal stockholder of the
Company, Copper King LLC, from time to time, provided advances to the Company for working capital purposes. These advances were
non-interest bearing and due on demand. The Company paid back this related party advances in August 2016. At October 31, 2016
and April 30, 2016, the Company had a payable to the principal stockholder of the Company of $0 and $123,624, respectively.
On April 19, 2016, the Company issued
a 5% Unsecured Promissory Note due July 1, 2016 to the principal stockholder of the Company, Copper King LLC in the amount of
$285,000. This promissory note does not contain any conversion features. . In August 2016, the Company paid back the principal
amount of the note together with the accrued interest for a total of $289,710. At October 31, 2016 and April 30, 2016, the outstanding
principal amount of the note was $0 and $285,000, respectively.
Accounts payable to a related party
as of October 31, 2016 was $2,431 and was reflected as accounts payable and accrued liabilities – related parties in the
accompanying unaudited condensed balance sheets. The related party is a managing partner of Copper King LLC.
NOTE 5 — STOCKHOLDERS’
EQUITY
Preferred Stock
The Company is authorized within
the limitations and restrictions stated in the Amended and Restated Articles of Incorporation to provide by resolution or resolutions
for the issuance of 50,000,000 shares of Preferred Stock, par value $0.0001 per share in such series and with such designations,
preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions as the
Company’s Board of Directors establish.
Series A Convertible Preferred
Stock
On April 6, 2016, the Company designated
20,000 shares of Series A Convertible Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”).
Each share of Series A Preferred Stock is convertible into shares of the Company’s common stock with a stated value
of $500 per share and an initial conversion price of $0.20 per share of common stock, subject to adjustment in the event of stock
split, stock dividends, and recapitalization or otherwise. The holders of the Series A Preferred Stock will vote on an as-converted
basis on all matters on which the holders of the common stock have a right to vote. On June 21, 2016, the Board of Directors of
the Company approved to lower the conversion price to $0.16666 and to increase the number of authorized shares to 23,000 Series
A Preferred Stock. The Series A Preferred Stock does not contain any redemption provision. The Series A Preferred Stock are
entitled to a liquidation preference equal to the par value of $0.0001, prior to any payments in respect of the common stock,
Series B Preferred Stock, and Series C Preferred Stock.
On April 8, 2016, the Company entered
into a consulting agreement with a consultant who will serve as the exclusive placement agent in connection with the private placement
sale of the Company’s common stock and warrants. The Company shall pay the consultant the following: (a) 10% of the gross
proceeds raised from investors introduced by the consultant plus non-allocable expense reimbursement equal to 2% of the gross
amount raised (b) Warrants equal to 10% of the securities sold in the private placement and (c) out-of-pocket expenses incurred
in connection with this services. The consultant shall also provide financial advisory services for a term of six months.
On July 6, 2016, the Company issued
2,334 shares of Series A Preferred Stock (convertible into 7,000,000 common shares) to this Placement Agent for certain financial
advisory services rendered during the three months ended July 31, 2016. Accordingly, the Company valued these common shares at
the fair value of $700,000 or $0.10 per common share based on the sale of its preferred stock in a private placement at $0.10
per common share and has recognized stock based consulting of $700,000 during the six months ended October 31, 2016.
NOTE 5 — STOCKHOLDERS’
EQUITY (continued)
Series B Convertible Preferred
Stock
On May 26, 2016, the Company designated
600,000 shares of Series B Convertible Preferred Stock, par value $0.0001 per share (the “Series B Preferred Stock”).
Each share of Series B Preferred Stock is convertible into shares of the Company’s common stock with a stated value
of $1 per share and conversion price of $0.10 per share of common stock, subject to adjustment in the event of stock split, stock
dividends, and recapitalization or otherwise. The holders of the Series B Preferred Stock will vote on an as-converted basis
on all matters on which the holders of the common stock have a right to vote. The Series B Preferred Stock does not contain
any redemption provision. The Series B Preferred Stock are entitled to a liquidation preference equal to the par value of $0.0001,
prior to any payments in respect of the common stock and Series C Preferred Stock, but not before payments in respect of the Company’s
Series A Preferred Stock.
On May 27, 2016, the Company issued
560,015 shares of its Series B Convertible Preferred Stock, convertible into 5,600,150 shares of its common stock, for $560,015.
The Company received net proceeds of $552,440 after legal fees and related private placement expenses.
Series C Convertible Preferred
Stock
In July 2016, the Company designated
5,000,000 shares of Series C Convertible Preferred Stock, par value $0.0001 per share (the “Series C Preferred Stock”).
Each share of Series C Preferred Stock is convertible into shares of the Company’s common stock with a stated value
of $2.20 per share and conversion price of $0.22 per share of common stock, subject to adjustment in the event of stock split,
stock dividends, and recapitalization or otherwise. The holders of the Series C Preferred Stock will vote on an as-converted
basis on all matters on which the holders of the common stock have a right to vote. The Series C Preferred Stock does not
contain any redemption provision. On October 5, 2016, the Board of Directors of the Company approved to increase the number of
authorized shares to 5,500,000 shares of Series C Preferred Stock.
On July 29, 2016, the Company completed
a private placement to several investors for the purchase of 2,156,688 shares of the Company’s Series C Convertible
Preferred Stock for aggregate net proceeds of approximately $4.06 million. The purchase price of one share of Series C Preferred
Stock was $2.20.
On August 10, 2016, the Company completed
a private placement to several investors for the purchase of 1,993,851 shares of the Company’s Series C Convertible
Preferred Stock for aggregate net proceeds of approximately $3.84 million. The purchase price of one share of Series C Preferred
Stock was $2.20.
On August 31, 2016, the Company completed
a private placement to several investors for the purchase of 849,445 shares of the Company’s Series C Convertible Preferred
Stock for aggregate net proceeds of approximately $1.63 million. The purchase price of one share of Series C Preferred Stock
was $2.20.
On October 6, 2016, the Company completed
a private placement to several investors for the purchase of 428,309 shares of the Company’s Series C Convertible Preferred
Stock for aggregate net proceeds of approximately $824,000. The purchase price of one share of Series C Preferred Stock was
$2.20.
In connection with these four private
placements, certain Financial Industry Regulatory Authority (“FINRA”) broker-dealers acted on behalf of the Company
and were paid aggregate cash commissions of approximately $1,458,000. The Company also paid legal fees and related private placement
expenses of approximately $171,000.
The Company is obligated to issue
5 year warrants to acquire an aggregate of 5,428,309 shares of common stock at an exercise price of $0.22 to a certain FINRA broker-dealer
who acted on behalf of the Company.
NOTE 5 — STOCKHOLDERS’
EQUITY (continued)
Common Stock
Common Stock for Services
On May 18, 2016, the Company issued
an aggregate of 750,000 shares of the Company’s common stock to the Chief Operating Officer and a director of the Company
for services rendered to the Company. These shares vested immediately on the date of issuance. The Company valued these common
shares at the fair value of $75,000 or $0.10 per common share based on the sale of its preferred stock in a private placement
at $0.10 per common share. In connection with the issuance of these common shares, the Company recorded stock based compensation
of $75,000 for the six months ended October 31, 2016.
On May 18, 2016, the Company issued
1,500,000 shares of the Company’s common stock to a consultant for services rendered to the Company. These shares vested
immediately on the date of issuance. The Company valued these common shares at the fair value of $150,000 or $0.10 per common
share based on the sale of its preferred stock in a private placement at $0.10 per common share. In connection with the issuance
of these common shares, the Company recorded stock based compensation of $62,500 for the six months ended October 31, 2016 and
prepaid expense of $87,500 as of October 31, 2016.
Stock Options
A summary of the Company’s
outstanding stock options as of October 31, 2016 and changes during the period then ended are presented below:
|
|
Number of
Options
|
|
Weighted
Average
Exercise
Price
|
|
Weighted
Average
Remaining
Contractual
Life
(Years)
|
Balance at April 30, 2016
|
|
|
—
|
|
|
$
|
—
|
|
|
|
—
|
|
Granted
|
|
|
2,777,500
|
|
|
|
0.30
|
|
|
|
5.0
|
|
Exercised
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Forfeited
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Cancelled
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Balance at October 31, 2016
|
|
|
2,777,500
|
|
|
|
0.30
|
|
|
|
4.57
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at end of period
|
|
|
578,646
|
|
|
$
|
0.30
|
|
|
|
|
|
Options expected to vest
|
|
|
2,198,854
|
|
|
$
|
0.30
|
|
|
|
|
|
Weighted average fair value of options granted during the
period
|
|
|
|
|
|
$
|
0.07
|
|
|
|
|
|
On May 27, 2016, in connection with
the Purchase and Sale Agreement related to the acquisition of the Keystone Property, the Company granted to the Sellers an aggregate
of 2,777,500 five-year option to purchase shares of the Company’s common stock at an exercise price of 0.30 per share. The
options shall vest over a period of two years whereby 1/24 of the options shall vest and become exercisable each month for the
next 24 months. The 2,777,500 options were valued on the grant date at approximately $0.07 per option or a total of $184,968 using
a Black-Scholes option pricing model with the following assumptions: stock price of $0.10 per share (based on the sale of its
preferred stock in a private placement at $0.10), volatility of 112% (based from volatilities of similar companies), expected
term of 5 years, and a risk free interest rate of 1.39%. The options are non-forfeitable and are not subject to obligations or
service requirements. The fair value of the options was included in the acquisition cost of the Keystone Project (see Note 3).
NOTE 6 — NET LOSS PER COMMON
SHARE
Net loss per common share is calculated
in accordance with ASC 260, “Earnings Per Share”. Basic loss per share is computed by dividing net loss available
to common stockholder, by the weighted average number of shares of Common Stock outstanding during the period. The following were
excluded from the computation of diluted shares outstanding as they would have had an anti-dilutive impact on the Company’s
net loss. In periods where the Company has a net loss, all dilutive securities are excluded.
|
|
October
31,
2016
|
|
October
31,
2015
|
Common stock equivalents:
|
|
|
|
|
|
|
|
|
Stock options
|
|
|
2,777,500
|
|
|
|
—
|
|
Stock warrants*
|
|
|
—
|
|
|
|
—
|
|
Convertible
preferred stock
|
|
|
126,883,237
|
|
|
|
—
|
|
Total
|
|
|
129,660,737
|
|
|
|
—
|
|
*As of October 31, 2016, the Company
is obligated to issue 5 year warrants to acquire an aggregate of 5,428,309 shares of common stock at an exercise price of $0.22
to a certain FINRA broker-dealer who acted on behalf of the Company in connection with the private placement sale of the Company’s
Series C Preferred Stock. The Company intends to issue these warrants upon closing the Merger Agreement with Dataram (see Note
7).
NOTE 7 — COMMITMENTS AND CONTINGENCIES
Mining Leases
The Copper King property position
consists of two State of Wyoming Metallic and Non-metallic Rocks and Minerals Mining Leases. These leases were assigned to the
Company in July 2014 through the acquisition of the Copper King project.
The Company’s rights to the
Copper King Project arise under two State of Wyoming mineral leases:
1) State of Wyoming Mining Lease
No. 0-40828 consisting of 640 acres.
2) State of Wyoming Mining Lease
No. 0-40858 consisting of 480 acres.
Lease 0-40828 was renewed in February
2013 for a second ten-year term and Lease 0-40858 was renewed for its second ten-year term in February 2014. Each lease requires
an annual payment of $2.00 per acre. In connection with the Wyoming Mining Leases, the following production royalties must
be paid to the State of Wyoming, although once the project is in operation, the Board of Land Commissioners has the authority
to reduce the royalty payable to the State:
FOB Mine Value per Ton
|
|
Percentage Royalty
|
$00.00 to $50.00
|
|
|
5
|
%
|
$50.01 to $100.00
|
|
|
7
|
%
|
$100.01 to $150.00
|
|
|
9
|
%
|
$150.01 and up
|
|
|
10
|
%
|
NOTE 7 — COMMITMENTS AND CONTINGENCIES
(continued)
The future minimum lease payments
under these mining leases are as follows:
2017
|
|
|
$
|
2,240
|
|
2018
|
|
|
|
2,240
|
|
2019
|
|
|
|
2,240
|
|
2020
|
|
|
|
2,240
|
|
2021
|
|
|
|
2,240
|
|
Thereafter
|
|
|
|
6,720
|
|
|
|
|
$
|
17,920
|
|
Executive Employment Agreements
On April 12, 2016, the Company entered
into an employment agreement with its Chief Executive Officer, Mr. Edward Karr. The initial term of the Agreement is for two years
ending on April 30, 2018, with automatic renewals for successive one year terms unless terminated by written notice at least 90
days prior to the expiration of the term. Mr. Karr is to receive a base salary of $250,000 per year. The Agreement calls for a
bonus of $250,000 to be awarded upon meeting certain milestone goal which is concluding a financing of at least $10,000,000, a
minimum of $2,500,000 of which must come from foreign investors. The bonus may be paid in cash, stock, or a combination thereof
in the discretion of the board. Any bonus for a calendar year shall be subject to Mr. Karr’s continued employment with the
Company through the end of the calendar year in which it is earned and shall be paid after the conclusion of the calendar year
in accordance with the Company’s regular bonus payment policies in the year following the year with respect to which the
bonus relates, and in any case not later than two and one half (2-1/2) months following the end of the year with respect to which
a bonus is earned.
The Company’s Chief Operating
Officer, Mr. David Rector, is employed under an Executive Employment Agreement dated Apri1 14, 2016. The initial term of the Agreement
is for one year, with automatic renewals for successive one year terms unless terminated by written notice at least 30 days prior
to the expiration of the term. Mr. Rector is to receive a base salary of $15,000 per month. The agreement calls for a bonus in
an amount up to the amount of the base salary, to be awarded in the discretion of the board of directors and to be paid in cash,
stock, or a combination thereof in the discretion of the board.
On June 27, 2016, the Company entered
into an employment agreement with its Chief Geologist, Mr. David Mathewson. The initial term of the Agreement is for one year,
with automatic renewals for successive one year terms unless terminated by written notice at least 30 days prior to the expiration
of the term by either party. Mr. Mathewson is to receive a base salary of $200,000 per year. The base salary shall be payable
as follows: (a) 25% of the base salary shall be payable in equal monthly cash installments and (b) the remaining 75% of the base
salary shall be payable in equal monthly installments in the form of common stock of the Company. Each installment of common stock
shall be issued on the first business day of the months and shall be valued at the market price on the trading day immediately
prior to the date of issuance. Market price is the closing bid price on the principal securities exchange or trading market. Mr.
Mathewson shall be entitled to receive bonus to be paid in cash, stock, or a combination thereof and equity awards.
Operating Lease
The Company leases its corporate
facility in Elko, Nevada under operating leases for a period of 12 months commencing in July 2016 and expiring in July 2017. The
Company shall pay a monthly base rent of $1,000 plus a pro rata share of operating expenses. Rent expense amounted to $4,000 for
the six months ended October 31, 2016.
Merger Agreement
On June 13, 2016, the Company and
Dataram Corporation, a Nevada corporation ("Dataram") entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Dataram’s wholly-owned subsidiary, Dataram Acquisition Sub, Inc., a Nevada corporation (“Acquisition
Sub”), Upon closing of the transactions contemplated under the Merger Agreement (the "Merger"), the Company will
merge with and into Acquisition Sub with the Company as the surviving corporation.
The closing of the Merger is subject
to customary closing conditions, including, among other things:
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•
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the approval of Dataram’s
shareholders holding a majority of the Dataram’s outstanding voting capital to
issue the Merger Consideration (as defined below) pursuant to the continued listing standards
of The NASDAQ Stock Market LLC;
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|
•
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the approval of the Dataram’s
shareholders holding a majority of Dataram’s outstanding voting capital to increase
the number of shares of authorized common stock;
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|
•
|
the closing by the Company
of a financing pursuant to which it receives at least $3 million in net proceeds from
the sale of its securities (the “U.S. Gold Financing”);
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•
|
the closing by the Company
of the acquisition of certain mining claims related to a gold development project in
Eureka County, Nevada (the “Keystone Project”);
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|
•
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the receipt by Dataram
of a fairness opinion with respect to the Merger and the Merger Consideration; and
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|
•
|
the Dataram’s Board
of Directors shall have declared, as a special dividend, a right entitling each stockholder
as of a record date (which shall be no less than five business days prior to the closing
of the Merger) to a proportionate ownership interest, record or beneficial, equal to
their ownership interest in Dataram, of certain pre-Merger Dataram assets or the proceeds
therefrom, as, when and if Dataram’s Board of Directors elects to divest such assets
within 18 months from the closing of the Merger.
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Pursuant to the terms and conditions
of the Merger Agreement, at the closing of the Merger, the holders of the Company’s common stock, Series A Preferred Stock
and Series B Preferred Stock will be converted into the right to receive shares of Dataram’s common stock, par value $0.001
per share (the “Common Stock”) or, at the election of the Company’s stockholder, shares of Dataram’s newly
designated 0% Series C Convertible Preferred Stock, par value $0.001 per share (the “Series C Preferred Stock), which are
convertible into shares of Common Stock (collectively, the “Merger Consideration”). On July 6, 2016, Dataram filed
a certificate of amendment (the “Amendment”) to its Articles of Incorporation with the Secretary of State of Nevada
in order to effectuate a reverse stock split of the Dataram’s issued and outstanding Common Stock per share on a one (1)
for three (3) basis, effective on July 8, 2016 (the “Reverse Stock Split”).
The Merger Consideration shall be
allocated as follows and is presented below in terms of Dataram’s Common Stock and reflects the effect of the 1 for 3 Reverse
Stock Split in July 2016:
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•
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22,333,333 shares of Dataram’s
Common Stock shall be issued to the holders of the Company’s Series A Preferred
Stock;
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|
•
|
1,866,717 shares of Dataram’s
Common Stock shall be issued to the holders of the Company’s Series B Preferred
Stock;
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NOTE 7 — COMMITMENTS AND CONTINGENCIES
(continued)
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•
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Up to 15,151,515 shares
of Dataram’s Common Stock shall be issued to holders of the Company’s common
stock issued in connection with the U.S. Gold Financing;
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•
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A minimum of 1,333,333
and a maximum of 2,333,333 shares of Dataram’s Common Stock and warrants to purchase
up to 250,000 shares of Dataram’s Common Stock (or such lesser amount depending
on the size of the U.S. Gold Financing) shall be issued to the placement agent in the
U.S. Gold Financing;
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|
•
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1,850,000 shares of Dataram’s
Common Stock shall be issued to the holders of the Company’s common stock issued
in connection with the closing of the acquisition of the Keystone Project;
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•
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1,583,333 shares of Dataram’s
Common Stock shall be issued to certain incoming officers and consultants of the Company
pursuant to a shareholder approved equity incentive plan of Dataram (the “Management
Shares”); and
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|
•
|
925,833 of Dataram’s
options shall be issued to the holders of the Company’s outstanding stock options
issued in connection with the closing of the acquisition of the Keystone Project.
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Upon closing of the Merger and as
a result of the transactions contemplated by the Merger Agreement, Dataram’s pre-Merger stockholders are anticipated to
own between approximately 8.6% and 11.0% of the outstanding Common Stock on an “as converted” basis.
The Company’s Chief Executive
Officer and Director, Mr. Edward Karr, also serves as a member of the Board of Directors of Dataram.
NOTE 8 — SUBSEQUENT EVENTS
On November 28, 2016, the Company,
Dataram Corporation, Dataram Acquisition Sub, Inc., and Copper King, LLC, a principal stockholder of the Company, amended and
restated that certain merger agreement between the parties dated as of June 13, 2016 which was amended and restated on July 29,
2016 (the “Amended and Restated Merger Agreement”) and amended and restated on September 14, 2016 (the “Second
Amended and Restated Merger Agreement”).
The parties agreed to execute the
Third and Final Amended and Restated Merger Agreement in order to, among other things:
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•
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Increase the Merger Consideration
for the Company’s holders of record, in the aggregate and on an “as converted”
and fully diluted basis, to 48,616,089 shares of common stock and equivalents from 46,241,868
shares of common stock and equivalents. This includes:
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|
o
|
Reducing the number of shares
issuable to holders of the Company’s Series C Preferred Stock issued in connection
with the Company’s holders private placement (the “Financing”) to 18,094,362
from 18,181,817;
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|
o
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Increasing the maximum number
of warrants to purchase Dataram’s common stock issuable to the placement agent
in the Financing to 1,809,436 five-year cashless warrants from 400,000 warrants;
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|
o
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Adding a provision to issue 925,833
five-year options which vest 1/24 each month over the 2 years from the original date
of issue to the holders of options issued in connection with the closing of the Keystone
Acquisition;
|
|
o
|
Eliminate a covenant that certain
officers and directors of Dataram be issued an aggregate of 820,000 shares of restricted
stock pursuant to a shareholder approved equity incentive plan, subject to the execution
of a two year lockup agreement; and
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|
o
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Revise the maximum number of shares
Dataram shall have outstanding at the closing of the merger, on a fully diluted basis,
to 4,945,182 shares of common stock and equivalents.
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PART
II
INFORMATION
NOT REQUIRED IN PROXY STATEMENT/PROSPECTUS
Item 20.
Indemnification
of Directors and Officers
Section
78.7502(1) of the Nevada Revised Statutes (“NRS”) provides that a corporation may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (except an action by or in the right of the corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding if such person: (i) is not liable for a breach of fiduciary duties that involved
intentional misconduct, fraud or a knowing violation of law; or (ii) acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Section
78.7502(2) of the NRS further provides that a corporation may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including amounts paid in settlement and attorneys’ fees) actually
and reasonably incurred in connection with the defense or settlement of the action or suit if such person: (i) is not liable for
a breach of fiduciary duties that involved intentional misconduct, fraud or a knowing violation of law; or (ii) acted in good
faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification
may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
To
the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (1) and (2) of Section 78.7502, as described above, or in defense
of any claim, issue or matter therein, the corporation shall indemnify him or her against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection with the defense.
The
Amended and Restated Bylaws of the Company provides that the Company shall, to the fullest extent permitted by the NRS, as now
or hereafter in effect, indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the
right of the Company, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit or proceeding if he: (i) is not liable pursuant to
NRS Section 78.138; or (ii) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Item 21.
Exhibits
and Financial Statement Schedules
(a)
Exhibit Index
A
list of exhibits filed with this registration statement on Form S-4 is set forth on the Exhibit Index and is incorporated herein
by reference.
(b)
Financial Statements
The
financial statements filed with this registration statement on Form S-4 are set forth on the Financial Statement Index and is
incorporated herein herein.
Item
22.
Undertakings
(a)
The undersigned registrant hereby undertakes as follows:
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(1)
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That
prior to any public reoffering of the securities registered hereunder through use of
a proxy statement/prospectus/information statement which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within the meaning
of Rule 145(c), the issuer undertakes that such reoffering proxy statement/prospectus/information
statement will contain the information called for by the applicable registration form
with respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
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(2)
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That
every proxy statement/prospectus/information statement (i) that is filed pursuant
to paragraph (a)(1) immediately preceding, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Securities Act and is used in connection
with an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the Securities Act,
each such post-effective amendment 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.
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|
(3)
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To
respond to requests for information that is incorporated by reference into this proxy
statement/prospectus/information statement pursuant to Item 4 10(b), 11, or 13 of
this Form, within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
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(4)
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To
supply by means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of and included
in the registration statement when it became effective.
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(b) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the city of Princeton, State of New Jersey, on the 30th day of
December, 2016.
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DATARAM
CORPORATION
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(Registrant)
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Date:
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December
30, 2016
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|
By:
/s/
David A. Moylan
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David
A. Moylan, Chairman and Chief Executive Officer
(Principal
Executive Officer)
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Date:
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December
30, 2016
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By:
/s/ Anthony M. Lougee
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Anthony
M. Lougee
Chief Financial Officer
(Principal Financial and Accounting Officer)
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KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of David A. Moylan
and Anthony M. Lougee his true and lawful attorney-in-fact and agent, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign 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 attorney-in-fact and agent, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitutes or substitute,
may lawfully do or cause to be done by virtue hereof.
IN
WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated opposite his/her name.
Pursuant
to the requirements of the Securities Act, this report has been signed by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
Date:
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December
30, 2016
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By:
/s/
David A. Moylan
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David
Moylan, Director and Chairman
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Date:
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December
30, 2016
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By:
/s/
Michael E. Markulec
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Michael
E. Markulec, Director
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Date:
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December
30, 2016
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By:
/s/
Trent D. Davis
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Trent
D. Davis, Director
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Date:
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December 30, 2016
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By:
/s/
Edward M. Karr
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Edward M. Karr, Director
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EXHIBIT
INDEX
2.1
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Agreement
and Plan of Merger of the Company into Dataram Corporation Nevada dated as of January 6, 2016 by and between Dataram Corporation,
a New Jersey corporation (“Dataram New Jersey”) and Dataram Corporation, a Nevada corporation and wholly-owned
subsidiary of Dataram New Jersey
(incorporated by reference from the Current Report
on Form 8-K filed with the Securities and Exchange Commission on January 8, 2016).
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2.2
|
Agreement
and Plan of Merger by and among the Company, Dataram Acquisition Sub, Inc., U.S. Gold Corp. and Copper King,
LLC dated June 13, 2016
(incorporated by reference from the Current Report on Form
8-K filed with the Securities and Exchange Commission on June 13, 2016).
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2.3
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Amended
and Restated Agreement and Plan of Merger by and among the Company, Dataram Acquisition Sub, Inc., U.S. Gold Corp. and
Copper King, LLC dated July 29, 2016
(incorporated by reference from the Current
Report on Form 8-K filed with the Securities and Exchange Commission on August 2, 2016).
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2.4
|
Second
Amended and Restated Agreement and Plan of Merger by and among the Company, Dataram Acquisition Sub, Inc., U.S. Gold Corp.
and Copper King, LLC dated September 14, 2016
(incorporated by reference from the
Current Report on Form 8-K filed with the Securities and Exchange Commission on September 15, 2016).
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2.5
|
Third
and Final Amended and Restated Merger Agreement by and among the Company, Dataram Acquisition Sub, Inc., U.S. Gold Corp.
and Copper King, LLC dated as of November 28, 2016
(incorporated by reference from
the Current Report on Form 8-K filed with the Securities and Exchange Commission on November 29, 2016).
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3.1
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Articles
of Incorporation filed with the Secretary of State of the State of Nevada
(incorporated
by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 8, 2016).
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3.2
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Certificate
of Amendment to Articles of Incorporation, dated July 6, 2016
(incorporated by reference
from the Current Report on Form 8-K filed with the Securities and Exchange Commission on July 8, 2016).
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3.3
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Amended
and Restated Bylaws of Dataram Corporation
(incorporated by reference from the Current
Report on Form 8-K filed with the Securities and Exchange Commission on February 23, 2016).
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3.4
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Certificate
of Designation of Series A Preferred Stock, as filed with the Secretary of State of the State of Nevada
(incorporated
by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 8, 2016).
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3.5
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Certificate
of Designation of Preferences, Rights and Limitations of 0% Series B Convertible Preferred Stock filed with the Nevada
Secretary of State on January 21, 2016
(incorporated by reference from the
Current Report on Form 8-K filed with the Securities and Exchange Commission on January 21, 2016).
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3.6
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Certificate
of Designations, Preferences and Rights of the 0% Series D Convertible Preferred Stock
(incorporated
by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on August 5, 2016).
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5.1
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Opinion
of Sichenzia Ross Ference Kesner LLP regarding the validity of the securities.
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10.1
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Form
of Exchange Agreement by and between the Company and the Holders of Series A Preferred Stock and Series A Warrants issued
on November 17, 2014
(incorporated by reference from the Current Report on Form
8-K filed with the Securities and Exchange Commission on January 21, 2016).
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10.2
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Form
of Exchange Agreement by and between the Company and the Holders of Series A Preferred Stock and Series A Warrants issued
on February 2, 2015
(incorporated by reference from the Current Report on Form 8-K
filed with the Securities and Exchange Commission on January 21, 2016).
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10.3
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Form
of Exchange Agreement by and between the Company and the Holders of Series A Preferred Stock and Series A Warrants issued
on October 30, 2015
(incorporated by reference from the Current Report on Form 8-K
filed with the Securities and Exchange Commission on January 21, 2016).
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10.4
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Form
of Exchange Agreement by and between the Company and the Holders of Bridge Notes and Bridge Warrants
(incorporated
by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 21, 2016).
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10.5
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Exchange
Agreement by and between the Company and the Holder of Registered Warrants
(incorporated
by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 21, 2016).
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10.6
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Exchange
Agreement by and between the Company and the Holder of Options to Purchase Shares of the Company’s Common Stock
(incorporated by reference from the Current Report on Form 8-K filed with the Securities
and Exchange Commission on January 21, 2016).
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10.7
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Form
of Subscription Agreement
(incorporated by reference from the Current Report on
Form 8-K filed with the Securities and Exchange Commission on August 5, 2016).
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10.8
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2001
Stock Option Plan (Incorporated by reference from the Definitive Proxy Statement for an Annual Meeting of Shareholders
held on September 12, 2001, filed with the Securities and Exchange Commission on July 26, 2001).
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10.9
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Savings
and Investment Retirement Plan, January 1, 2001 Restatement (Incorporated by reference to an Annual Report on Form 10-K
for the year ended April 30, 2003 filed with the Securities and Exchange Commission on July 29, 2003).
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10.10
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2011
Stock Option Plan (incorporated by reference to a Definitive Proxy Statement for an Annual Meeting of Shareholders held
on September 22, 2011 filed with the Securities and Exchange Commission on August 16, 2011).
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10.11
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Lease
Agreement dated as of April 4, 2011, between Hillier Properties, L.L.C., and Dataram Corporation (Incorporated by reference
to an Annual Report on Form 10-K for the year ended April 30, 2011 filed with the Securities and Exchange Commission on
July 28, 2011).
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10.12
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Lease
Agreement, dated December 31, 2000, between Nappen & Associates and Micro Memory Bank, Inc. and assigned to Dataram
Corporation (Incorporated by reference to an Annual Report on Form 10-K for the year ended April 30, 2009 filed with the
Securities and Exchange Commission on July 28, 2009).
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10.13
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Lease
Renewal Agreement, dated February 13, 2006, between Nappen & Associates and Micro Memory Bank, Inc. and assigned to
Dataram Corporation (Incorporated by reference from Exhibits to an Annual Report on Form 10-K for the year ended April
30, 2009 filed with the Securities and Exchange Commission on July 28, 2009).
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10.14
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Lease
Renewal Agreement, dated February 10, 2011, between Nappen & Associates and Dataram Corporation (Incorporated by reference
to an Annual Report on Form 10-K for the year ended April 30, 2011 filed with the Securities and Exchange Commission on
July 28, 2011).
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10.15
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Product
Consignment And Sale Agreement, dated as of July 27, 2010, Between Sheerr Memory, Inc. and Dataram Corporation (Incorporated
by reference to a Current Report on Form 8-K filed with the Securities and Exchange Commission on July 29, 2010).
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10.16
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Note
and Security Agreement, dated as of December 14, 2011, by and among David Sheerr and Dataram Corporation (Incorporated
by reference to a Current Report on Form 8-K filed with the Securities and Exchange Commission on December 15, 2011).
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10.17
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Consignment
Termination letter, dated December 14, 2011, between Sheerr Memory, Inc. and Dataram corporation (Incorporated by reference
from Exhibits to a Current Report on Form 8-K filed with the Securities and Exchange Commission on December 15, 2011).
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10.18
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Patent
Purchase Agreement, dated as of March 29, 2012, by and between Dataram Corporation and Phan Tia Group Pte, LLC (Incorporated
by reference to Amendment No. 1 to a Current Report on Form 8-K with the Securities and Exchange Commission filed on April
24, 2012).
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10.19
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Securities
Purchase Agreement, dated September 18, 2013, by and between Dataram Corporation and certain investors (Incorporated
by reference to a Current Report on Form 8-K filed with the Securities and Exchange Commission on September 19, 2013).
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10.20
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Subordinated
Secure Convertible Bridge Note purchase agreement dated July 14, 2015 by and between Dataram Corporation and certain investors
(Incorporated by reference to a Current Report on Form 8-K filed with the Securities and Exchange Commission on July 18,
2014).
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10.21
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Series
A Preferred Stock Purchase agreement dated as of October 20, 2014, by and between Dataram Corporation (Incorporated by
reference to a Current Report on Form 8-K filed with the Securities and Exchange Commission on October 21, 2014).
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10.22
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Employment
Agreement dated July 31, 2015 by and between Anthony M. Lougee and Dataram Corporation (Incorporated by reference to a
Current Report on Form 8-K filed with the Securities and Exchange Commission on August 4, 2015).
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10.23
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Employment
Agreement dated June 8, 2015 by and between David A. Moylan and Dataram Corporation (Incorporated by reference to
a Current Report on Form 8-K filed with the Securities and Exchange Commission on June 12, 2015).
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10.24*
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Employment
Agreement dated April 12, 2016 by and between Edward M. Karr and US Gold
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10.25*
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Employment
Agreement dated April 14, 2016 by and between David S. Rector and US Gold
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10.26
|
David
A. Moylan Change in Control Severance Agreement (Incorporated by reference to a Current Report on Form 8-K filed with the
Securities and Exchange Commission on June 12, 2015).
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10.27
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Form of Subscription Agreement
(incorporated by reference from the Current Report on Form 8-K filed with the Securities
and Exchange Commission on August 4, 2015).
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10.28
|
Change
in Control Severance Agreement between the Company and Anthony Lougee, dated July 31, 2015
(incorporated
by reference from the Current Report on Form 8-K filed with the Securities and Exchange Commission on August 4, 2015).
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23.1*
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Consent
of Marcum LLP, Independent Registered Public Accounting Firm to Dataram Corporation
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23.2*
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Consent
of Anton & Chia, LLP, Independent Registered Public Accounting Firm to Dataram Corporation
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23.3*
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Consent
of Marcum LLP, Independent Registered Public Accounting Firm to U.S. Gold Corp.
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23.4*
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Consent
of Sichenzia Ross Ference Kesner LLP (included in Exhibit 5.1 hereto).
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24.1*
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Power
of attorney (included on the signature page of this Registration Statement).
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99.1*
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Opinion
of ROTH Capital Partners, LLC, financial advisor to Dataram Corporation (included as
Annex B
to the proxy
statement/prospectus forming a part of this Registration Statement).
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99.2
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David
A. Moylan Permanent CEO Offer Letter (Incorporated by reference to a Current Report on Form 8-K filed with the Securities
and Exchange Commission on June 12, 2015).
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99.3
|
Letter
agreement between the Company and Anthony Lougee, dated July 31, 2015 (Incorporated by reference to a Current Report on Form
8-K filed with the Securities and Exchange Commission on August 4, 2015).
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*
Filed herewith.
** To be filed by amendment
Annex A
Third
Amended and Restated Agreement and Plan of Merger
Annex B
Fairness
Opinion of ROTH Capital Partners, LLC
November 28, 2016
Special Committee of the Board of Directors
Dataram Corporation
777 Alexander Road, Suite 100
Princeton, New Jersey 08540
Attention: David A. Moylan, Chairman and Chief Executive Officer
Members of the Special Committee of the Board of Directors:
Roth
Capital Partners, LLC (“Roth, “us” or “we”) understands that Dataram Corporation, a corporation organized
under the laws of the State of Nevada (“Dataram”), intends to enter into an Agreement and Plan of Merger substantially
in the form of a draft dated November, 2016 (the “Merger Agreement”) by and among Dataram; Dataram Acquisition Sub,
Inc., a Nevada corporation and wholly-owned subsidiary of the Dataram (the “Merger Sub”); U.S. Gold Corp., a Nevada
corporation (“U.S. Gold”); and Copper King LLC, a principal stockholder of the Company (“Copper King”).
Unless otherwise set forth herein, capitalized terms set forth herein shall have the meanings ascribed to them in the Merger Agreement.
Pursuant
to the Merger Agreement, Dataram will acquire U.S. Gold through the merger of U.S. Gold with and into the Merger Sub, with U.S.
Gold surviving such merger, upon the terms and subject to the conditions set forth therein, whereby all of the issued and outstanding
shares of the capital stock and other securities of the U.S. Gold will be converted into the right to receive the Merger Consideration
(as defined therein; provided, however, for purposes of this opinion only, we have excluded the common stock to be issued in the
Company Financing as further described in Section 2(d) and 2(e) of the Merger Agreement).
You have asked us to render an opinion, as of
the date hereof, with respect to the fairness, from a financial point of view, of the Merger Consideration to the holders of Dataram
Shares.
For purposes of the opinion set forth herein,
we have reviewed a draft of the Merger Agreement dated November, 2016, and we have also, among other things:
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(i)
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reviewed certain publicly available and other business and financial information provided (or caused
to be made available to us) by Dataram;
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(ii)
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reviewed certain internal financial statements and other financial and operating data concerning
U.S. Gold provided (or caused to be made available to us) by Dataram;
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(iii)
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reviewed certain financial forecasts relating to U.S. Gold prepared by the management of U.S. Gold
(the “U.S. Gold Forecasts”) and provided (or caused to be made available to us) by Dataram;
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(iv)
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discussed the past and current operations, financial condition and prospects of each of U.S. Gold
and Dataram with senior management of Dataram, including the assessments of senior management of Dataram as to the liquidity needs
of, and financing alternatives and other capital resources available to, U.S. Gold;
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(v)
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participated in certain discussions with senior management of Dataram regarding their assessment
of the strategic rationale for, and the potential benefits of, the Merger;
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Dataram Corporation
November 28, 2016
Page 2 of 4
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(vi)
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compared the financial performance of Dataram and U.S. Gold, and their prices and trading activity
respectively with that of certain publicly-traded companies we deemed relevant in preparing this opinion;
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(vii)
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compared certain financial terms of the Merger to financial terms, to the extent publicly available,
of certain other business combination transactions we deemed relevant in preparing this opinion;
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(viii)
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participated in discussions with certain representatives of Dataram, and its professional advisors;
and
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(ix)
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performed such other analyses and considered such other data, financial studies, analyses and investigations,
and financial, economic and market criteria and factors which we deemed relevant in preparing this opinion.
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In conducting our review and arriving at our
opinion, with your consent, we have not independently investigated or verified any of the foregoing information and we have assumed
and relied upon such information as being accurate and complete in all material respects, and we have further relied upon verbal
or written assurances of senior management of Dataram that such information was accurate and complete in all material respects
when given to us and that they are not aware of any facts or circumstances that would make or render any of such information inaccurate,
incomplete or misleading in any material respect. With respect to the U.S. Gold Forecasts, we have assumed that they have been
reasonably prepared on bases reflecting the best then-currently available estimates and good faith judgments of the management
of U.S. Gold as to the future financial performance of U.S. Gold. We have not been engaged to assess the achievability of any projections
or the assumptions on which they were based, and we express no view as to such projections or assumptions. In addition, we have
not assumed any responsibility for any independent valuation or appraisal of the assets, liabilities or business operations of
Dataram or U.S. Gold, nor have we been furnished with any such valuation or appraisal. In addition, we have not assumed any obligation
to conduct, nor have we actually conducted, any physical inspection of the properties or facilities of Dataram or U.S. Gold.
We also have assumed, with your consent, that
(i) the Merger will be consummated substantially in accordance with the terms set forth in the Merger Agreement and in compliance
with the applicable provisions of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange
Act of 1934, as amended, the Nevada Revised Statues, and all other applicable federal, state and local statutes, rules, regulations
promulgated thereunder and the rules and regulations of the Nasdaq Stock Market, LLC, and any other applicable exchanges (collectively,
“Securities and Exchange Rules”), (ii) the representations and warranties of each party in the Merger Agreement are
true and correct (except to the extent such representations and warranties may be reasonably construed as a determination or conclusion
of or by any such party regarding the fairness of the Merger), (iii) each party to the Merger Agreement will perform on a timely
basis all covenants and agreements required to be performed by it under the Merger Agreement, and (iv) all conditions to the consummation
of the Merger will be satisfied without waiver thereof. We have further assumed that the final Merger Agreement when signed by
all relevant parties will conform in all material respects to the draft Merger Agreement dated November, 2016, and that the Merger
will be consummated as described in the draft Merger Agreement. We have also assumed that all governmental, regulatory and other
consents and approvals contemplated by the Merger Agreement will be timely obtained and that, in the course of obtaining any of
those consents and approvals, no modification, delay, limitation, restriction or condition will be imposed or waivers made that
would have a material adverse effect on Dataram or U.S. Gold or on the contemplated benefits of the Merger.
Dataram Corporation
November 28, 2016
Page 3 of 4
Our opinion addresses only the fairness, from
a financial point of view, as of the date hereof, of the Merger Consideration to the shareholders of Dataram. Our opinion does
not in any manner address any other aspect or implication of the Merger or any agreement, arrangement or understanding entered
into in connection with the Merger or otherwise, including, without limitation, the fairness of the amount or nature of any compensation
to any officers, directors or employees of, or any class of such persons, relative to the consideration to be received by the shareholders
of Dataram in the Merger. Our opinion also does not address the relative merits of the Merger as compared to any alternative business
strategies that might exist for Dataram, the underlying business decision of Dataram to proceed with the Merger, or the effects
of any other transaction in which Dataram might engage. The issuance of this opinion was approved by an authorized internal fairness
committee of Roth in accordance with our customary practice. Our opinion is necessarily based on economic, monetary, market, financial
and other conditions as they exist and can be evaluated, and the information made available to us, as of the date hereof. We express
no opinion as to the underlying valuation, future performance or long-term viability of Dataram or U.S. Gold. Further, we express
no opinion as to the actual value of the shares of Dataram when issued pursuant to the Merger Agreement or the prices at which
shares of Dataram will trade at any time before, after or during the Merger. It should be understood that, although subsequent
developments or events may affect various assumptions used by us in preparing our opinion, we do not have any obligation to update,
revise or reaffirm our opinion based on such developments or events or otherwise and we expressly disclaim any responsibility to
do so. Our opinion does not address any legal, tax or accounting matters.
We have acted as financial advisor to Dataram
in connection with the Merger and will receive a fee for our services payable upon delivery of this opinion to the Special Committee
of the Board of Directors of Dataram following a request from such Committee that our opinion be so delivered. Our fee is not contingent
upon the consummation of the Merger. We will be reimbursed for our reasonable out of pocket expenses incurred in rendering services
to Dataram, subject to an agreed maximum amount. Payment of such reimbursement is not contingent upon consummation of the Merger.
Dataram has agreed to indemnify us for certain losses, claims, damages and liabilities arising out our performance of services
pursuant to our engagement with Dataram. Subject to a fairness opinion we gave during June 2016, in the two years prior to the
date hereof, we have not provided any services to the Dataram where we received a fee.
Roth, as part of its investment banking business,
is continually engaged in the valuation of businesses and their securities in connection with arrangements and acquisitions, negotiated
underwritings, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate
and other purposes. We are a full service securities firm engaged in securities trading and brokerage activities, as well as providing
investment banking and other financial services. In the ordinary course of business, we and our affiliates may acquire, hold or
sell, for our and our affiliates’ own accounts and for the accounts of customers, equity, debt and other securities and financial
instruments (including bank loans and other obligations) of Dataram or U.S. Gold, and, accordingly, may at any time hold a long
or a short position in such securities.
Dataram Corporation
November 28, 2016
Page 4 of 4
It is understood that this letter is solely
for the information and use of the Special Committee of the Board of Directors of Dataram in connection with its evaluation and
possible recommendation of the Merger and does not constitute a recommendation to any stockholder of Dataram as to how such stockholder
should vote or otherwise act or refrain from acting on any matter relating to the Merger. Subject to all qualifications, limitations
and assumptions set forth herein, the Board of Directors of Dataram is entitled to rely on this opinion in connection with its
evaluation and possible approval and recommendation of the Merger. Except as otherwise set forth herein, or as expressly contemplated
by and subject to the limitations set forth in the Merger Agreement, this opinion may not be reproduced, disseminated, quoted or
referred to at any time, in any manner or for any purpose without our prior written consent, provided that we hereby authorize
a copy of this opinion to be included in its entirety as an exhibit, and a summary of the contents of this opinion to be disclosed,
in any filing or other disclosure that Dataram is required to make under Securities and Exchange Rules in connection with the Merger,
but only to the extent Dataram has reasonably concluded that such inclusion or disclosure is required by or advisable under applicable
law.
On the basis of and subject to the foregoing,
we are of the opinion, as of the date hereof, that the Merger Consideration is fair, from a financial point of view, to the shareholders
of Dataram.
Very truly yours,
Roth Capital Partners, LLC
Annex
C
CERTIFICATE
OF AMENDMENT
TO ARTICLES
OF INCORPORATION FOR NEVADA PROFIT CORPORATIONS
(Pursuant
to NRS 78.385 and 78.390 – After Issuance of Stock)
1. Name
of Corporation: Dataram Corporation
2. The
Articles of Incorporation (the “Articles”) have been amended as follows:
Subsections
3.01, 3.02 and 3.03 of Article III are hereby amended and replaced with the following:
3.01
Authorized
Capital Stock.
The total number of shares of stock this Corporation is authorized to issue two hundred
fifty million (250,000,000) shares. This stock shall be divided into two classes to be designated as "Common Stock"
and "Preferred Stock."
3.02
Common
Stock.
The total number of authorized shares of Common Stock shall be two hundred million (200,000,000)
shares with par value of $0.001 per share.
3.03
Preferred
Stock.
The total number of authorized shares of Preferred Stock shall be fifty million (50,000,000)
shares with par value of $0.001 per share.
3. The
vote by which the shareholders holding shares in the corporation entitling them to exercise at least a majority of the voting
power, or such greater proportion of the voting power as may be required in the case of a vote by classes or series, or as may
be required by the provisions of the articles of incorporation have voted in favor of the amendment is: *%.
4. Effective
date of filing:
5. Signature:
Annex
D
CERTIFICATE
OF AMENDMENT
TO ARTICLES
OF INCORPORATION FOR NEVADA PROFIT CORPORATIONS
(Pursuant
to NRS 78.385 and 78.390 – After Issuance of Stock)
1.
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Name of
Corporation: Dataram Corporation
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2.
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The following amendments
to the Articles of Incorporation, as amended, were approved by the directors and thereafter duly adopted by the shareholders
of the corporation on the * day of *, 2017.
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3.
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The number of shares
outstanding at the time of the adoption of the amendment was: * shares. The total number of shares entitled to vote thereon
was: * shares of Common Stock.
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4.
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Resolved that Article
III is hereby amended to add the following
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“Upon the filing
and effectiveness (the “Effective Time”) pursuant to the Nevada Revised Statutes of this amendment to the Corporation’s
Articles of Incorporation, as amended, each * shares of Common Stock issued and outstanding immediately prior to
the Effective Time either issued and outstanding or held by the Corporation as treasury stock shall be combined into one (1) validly
issued, fully paid and non-assessable share of Common Stock without any further action by the Corporation or the holder thereof
(the “Reverse Stock Split”); provided that no fractional shares shall be issued to any holder and that instead
of issuing such fractional shares, the holder shall be entitled to receive cash in an amount equal to the product obtained
by multiplying (i) the closing sale price of the Company’s Common Stock on the business day immediately preceding the
effective date of the Reverse Stock Split as reported on the NASDAQ Capital Market by (ii) the number of shares of the Company’s
Common Stock held by the shareholder that would otherwise have been exchanged for the fractional share interest. Each certificate
that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”), shall thereafter
represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall
have been combined, subject to the treatment of fractional shares as described above.”
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* Whole number between
2 and 10 as determined by the Board of Directors in its sole discretion
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5.
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The number of shares
voting for and against this amendment to Article III is as follows.
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Number
of Shares Voting for Amendment:
_______
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Number
of Shares Voting Against Amendment:
_______
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6.
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This Certificate of
Amendment shall become effective immediately upon filing with the State of Nevada.
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Dated this * day of *, 2017
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By:
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Name:
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Title:
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