As
filed with the Securities and Exchange Commission on January 13,
2010
Registration
No. 333-_____
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
__________________________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
__________________________
PROCERA
NETWORKS, INC.
(Exact
name of registrant as specified in its charter)
Nevada
(State
or Other Jurisdiction of Incorporation or Organization)
33-0974674
(IRS
Employer Identification No.)
__________________________
100C
Cooper Court
Los
Gatos, California 95032
(408)
890-7100
(Address,
including zip code, and telephone number,
including
area code, of Registrant’s principal executive offices)
__________________________
James
F. Brear
Chief
Executive Officer
Procera
Networks, Inc.
100C
Cooper Court
Los
Gatos, California 95032
(408)
890-7100
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
__________________________
Copies
to:
Eric
C. Jensen, Esq.
Michael
E. Tenta, Esq.
Cooley
Godward Kronish LLP
Five
Palo Alto Square
3000
El Camino Real
Palo
Alto, CA 94306
(650)
843-5000
Approximate
date of commencement of proposed sale to the public:
From time
to time after the effective date of this registration statement
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box.
£
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
T
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(c) 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.
£
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
£
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box.
£
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
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer
£
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Accelerated
filer
T
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Non-accelerated
filer
£
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Smaller
reporting company
£
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title of Each Class of Securities to be
Registered
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Amount to be Registered (1)
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Proposed Maximum Offering Price Per Share
(2)
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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 $0.001 per
share
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18,000,000
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$
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0.55
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$
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9,900,000
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$
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705.87
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, this Registration
Statement shall also cover any additional shares of Registrant’s common
stock that become issuable by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of
consideration.
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(2)
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Estimated
solely for purposes of calculation of the registration fee in accordance
with Rule 457(c) of the Securities Act of 1933, as amended. The price per
share of common stock is based on the average of the high and low prices
of Registrant’s common stock on January 6, 2010 as reported on the NYSE
Amex Equities U.S.
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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 Securities and Exchange Commission acting pursuant
to said Section 8(a) may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
Subject
to Completion, dated January 13, 2010
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PROSPECTUS
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18,000,000
Shares of Common Stock
From time
to time, we may offer and sell shares of common stock in amounts, at prices and
on terms described in one or more supplements to this prospectus, to be
determined at or prior to the time of sale, up to 18,000,000 shares. We will
specify in an accompanying prospectus supplement the terms of any
offering.
We may
also authorize one or more free writing prospectuses to be provided to you
in connection with a specific offering.
We may sell these
shares to or through underwriters and also to other purchasers or through
agents. We will set forth the names of any underwriters or agents in the
accompanying prospectus supplement.
You
should read this prospectus and any prospectus supplement and/or free writing
prospectus carefully before you invest.
Investing
in our common stock involves a high degree of risk. See the section entitled
“Risk Factors” on page 1 of this prospectus and under similar headings in the
other documents that are incorporated by reference into this
prospectus.
This
prospectus may not be used to consummate a sale of any securities unless
accompanied by a prospectus supplement.
The
shares of our common stock may be sold directly by us to investors, through
agents designated from time to time or to or through underwriters or dealers.
For additional information on the methods of sale, you should refer to the
section entitled “Plan of Distribution.” The net proceeds we expect to receive
from such sale will also be set forth in a prospectus supplement.
Our
common stock is currently listed on the NYSE Amex Equities U.S. Market under the
symbol “PKT.” On January 12, 2010, the last reported sales price for our common
stock was $0.61 per share. As of January 12, 2010, the aggregate market value of
our outstanding common stock held by non-affiliates, or the public float, was
approximately $55,782,932, which was calculated based on 91,447,429 shares of
outstanding common stock held by non-affiliates and on a price of $0.61 per
share, the closing price of our common stock on January 12, 2010. Pursuant to
General Instruction I.B.6 of Form S-3, in no event will we sell our common stock
in a public primary offering with a value exceeding more than one-third of our
public float in any 12-month period so long as our public float remains below
$75.0 million. We have not offered any securities pursuant to General
Instruction I.B.6 of Form S-3 during the 12 calendar months prior to and
including the date of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The date
of this prospectus
is ,
2010.
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement we filed with the Securities and
Exchange Commission, or the SEC. You should rely only on the information we have
provided or incorporated by reference in this prospectus or any prospectus
supplement and/or free writing prospectus. We have not authorized anyone to
provide you with information different from that contained in this prospectus.
No dealer, salesperson or other person is authorized to give any information or
to represent anything not contained in this prospectus. You must not rely on any
unauthorized information or representation. This prospectus is an offer to sell
only the shares of common stock offered hereby, but only under circumstances and
in jurisdictions where it is lawful to do so. You should assume that the
information in this prospectus or any prospectus supplement is accurate only as
of the date on the front of the document and that any information we have
incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus
or any sale of a security.
This
prospectus is part of a registration statement that we filed with the SEC using
a “shelf” registration process. Under this shelf registration process, we may
sell up to 18,000,000 shares of our common stock in one or more offerings. Each
time we sell any of our common stock under this prospectus, we will provide a
prospectus supplement that will contain more specific information about the
terms of that offering. We may also use the prospectus supplement to add, update
or change any of the information contained in this prospectus or in documents we
have incorporated by reference. This prospectus, together with any applicable
prospectus supplements and the documents incorporated by reference into this
prospectus, includes all material information relating to this offering. Please
carefully read both this prospectus and any prospectus supplement together with
the additional information described below under “Where You Can Find More
Information.”
We may
sell shares of our common stock through underwriters or dealers, through agents,
directly to purchasers or through a combination of these methods. We and our
agents reserve the sole right to accept or reject in whole or in part any
proposed purchase of common stock. The prospectus supplement, which we will
prepare and file with the SEC each time we offer shares of common stock, will
set forth the names of any underwriters, agents or others involved in the sale
of common stock, and any applicable fee, commission or discount arrangements
with them. See “Plan of Distribution.”
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
SUMM
ARY
Procera
Networks, Inc.
We
are a provider of broadband bandwidth management and control products for
broadband communications networks. Our products enable network congestion
management, network operating intelligence, and subscriber or user service
management. Our products are based upon proprietary network traffic
identification technology based upon deep-packet inspection, or DPI,
capabilities, as well as network reporting functions. Our products are used by
entities that have a broadband network, including communications service
providers, universities, enterprises and government entities. The communications
service providers that use our products include cable, telephone and mobile
communications companies.
Our
products include software applications running on a high performance hardware
platform. The high performance hardware platform is designed to handle broadband
network throughput ranging from 4 megabytes per second to 40 gigabytes per
second per device. Multiple devices can be deployed in a synchronized cluster,
linearly scaling to 64 devices and through-put of 2.5 terabytes per
second.
Network
administrators typically use our products to monitor network use or traffic on
an application and user-specific basis in real-time. Our products enable network
administrators to improve network utilization, thereby reducing additional
infrastructure investment. Our software application is branded PacketLogic TM.
The PacketLogic software application has five functional modules: traffic
identification and classification, traffic shaping, traffic filtering, flow
statistics and web-based statistics.
We were
incorporated in 2002, and in October 2003, we merged with Zowcom, Inc., a
publicly-traded Nevada corporation. Our principal executive offices are located
at 100 Cooper Court, Los Gatos, CA 95032. Further information can be found on
our website: www.proceranetworks.com. Information found on our website is not
incorporated by reference into this prospectus. Our telephone number is (408)
890-7100.
RISK FACTORS
Investing
in shares of our common stock involves a high degree of risk. The prospectus
supplement applicable to a particular offering of common stock will contain a
discussion of the risks applicable to an investment in Procera and to the shares
of common stock that we are offering under that prospectus supplement. Before
making an investment decision, you should carefully consider the risks described
under “Risk Factors” in the applicable prospectus supplement and in our most
recent Annual Report on Form 10-K, or any updates in our Quarterly Reports on
Form 10-Q, together with all of the other information appearing in or
incorporated by reference into this prospectus and any applicable prospectus
supplement, in light of your particular investment objectives and financial
circumstances. Our business, financial condition or results of operations could
be materially adversely affected by any of these risks. The trading price of our
shares of common stock could decline due to any of these risks, and you may lose
all or part of your investment.
DISCL
OSURE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus or any accompanying prospectus supplement, including the documents
that we incorporate by reference, may contain forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended (the
“Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). Forward-looking statements include those that
express plans, anticipation, intent, contingency, goals, targets or future
development and/or otherwise are not statements of historical fact. Any
forward-looking statements are based on our current expectations and projections
about future events and are subject to risks and uncertainties known and unknown
that could cause actual results and developments to differ materially from those
expressed or implied in such statements.
In some
cases, you can identify forward-looking statements by terminology, such as
“expects,” “anticipates,” “intends,” “estimates,” “plans,” “believes,” “seeks,”
“may,” “should”, “could” or the negative of such terms or other similar
expressions. Accordingly, these statements involve estimates, assumptions and
uncertainties that could cause actual results to differ materially from those
expressed in them. Any forward-looking statements are qualified in their
entirety by reference to the risk factors described herein and those included in
any accompanying prospectus supplement or in any document incorporated by
reference into this prospectus.
You
should read this prospectus and any accompanying prospectus supplement and the
documents that we reference herein and therein and have filed as exhibits to the
registration statement, of which this prospectus is part, completely and with
the understanding that our actual future results may be materially different
from what we concurrently expect. You should assume that the information
appearing in this prospectus, any accompanying prospectus supplement and any
document incorporated herein reference is accurate as of its date only.
Because the risk factors referred to above could cause actual results or
outcomes to differ materially from those expressed in any forward-looking
statements made by us or on our behalf, you should not place undue reliance on
any forward-looking statements. Further, any forward-looking statement speaks
only as of the date on which it is made, and we undertake no obligation to
update any forward-looking statement to reflect events or circumstances after
the date on which the statement is made or to reflect the occurrence of
unanticipated events. New factors emerge from time to time, and it is not
possible for us to predict which factors will arise. In addition, we cannot
assess the impact of each factor on our business or the extent to which any
factor, or combination of factors, may cause actual results to differ materially
from those contained in any forward-looking statements. We qualify all of the
information presented in this prospectus, any accompanying prospectus supplement
and any document incorporated herein by reference, and particularly our
forward-looking statements, by these cautionary statements.
USE
OF PROCEEDS
Except as
described in any prospectus supplement, we currently intend to use the net
proceeds from the sale of our shares of common stock covered by this prospectus
for general working capital purposes, including:
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·
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Procuring
inventory for sale to our
customers;
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·
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Increasing
our research and development activities, including hiring additional
software engineers; and
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·
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Increasing
our sales and marketing activities, including hiring additional sales and
marketing employees.
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We may
also use a portion of the net proceeds to pay down debt, or to invest in or
acquire businesses or technologies that we believe are complementary to our own,
although we have no current plans, commitments or agreements with respect to any
acquisitions as of the date of this prospectus. Pending these uses, we intend to
invest the net proceeds in demand deposits, money market accounts or in
investment-grade, interest-bearing securities.
PLA
N OF DISTRIBUTION
We may
sell shares of our common stock through underwriters or dealers, through agents,
or directly to one or more purchasers. A prospectus supplement or supplements
will describe the terms of the offering of the securities, including, to the
extent applicable:
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the
name or names of any underwriters;
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the
purchase price of the shares of our common stock and the proceeds we will
receive from the sale;
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any
over-allotment options under which underwriters may purchase additional
shares of our common stock from us;
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any
agency fees or underwriting discounts and other items constituting agents’
or underwriters’ compensation;
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any
public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
securities exchange or market on which the shares of our common stock may
be listed.
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Only
underwriters named in the prospectus supplement are underwriters of the
securities offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the shares of our common
stock for their own account and may resell the shares of our common stock from
time to time in one or more transactions at a fixed public offering price or at
varying prices determined at the time of sale. The obligations of the
underwriters to our purchase shares of our common stock will be subject to the
conditions set forth in the applicable underwriting agreement. We may offer
shares of our common stock to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Subject to certain conditions, the underwriters will be obligated to purchase
all of the shares of our common stock offered by the prospectus supplement. Any
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may change from time to time. We may use underwriters with whom
we have a material relationship. We will describe in the prospectus supplement,
naming the underwriter, the nature of any such relationship.
We may
sell shares of our common stock directly or through agents we designate from
time to time. We will name any agent involved in the offering and sale of shares
of our common stock and we will describe any commissions we will pay the agent
in the prospectus supplement. Unless the prospectus supplement states otherwise,
our agent will act on a best-efforts basis for the period of its
appointment.
We may
authorize agents or underwriters to solicit offers by certain types of
institutional investors to purchase shares of our common stock from us at the
public offering price set forth in the prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. We will describe the conditions to these contracts and the commissions
we must pay for solicitation of these contracts in the prospectus
supplement.
We may
provide agents and underwriters with indemnification against civil liabilities
related to this offering, including liabilities under the Securities Act, or
contribution with respect to payments that the agents or underwriters may make
with respect to these liabilities. Agents and underwriters may engage in
transactions with, or perform services for, us in the ordinary course of
business.
Any
underwriter may engage in overallotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). Overallotment
involves sales in excess of the offering size, which create a short position.
Stabilizing transactions permit bids to purchase the underlying security so long
as the stabilizing bids do not exceed a specified maximum. Short covering
transactions involve purchases of the securities in the open market after the
distribution is completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering transaction to cover
short positions. Those activities may cause the price of the securities to be
higher than it would otherwise be. If commenced, the underwriters may
discontinue any of the activities at any time.
LEGAL
MATTERS
McDonald
Carano Wilson LLP will pass upon the validity of the common stock being offered
by this prospectus.
EXP
ERTS
The
financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2008 have been so incorporated in reliance on the report of PMB
Helin Donovan LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
WHERE YOU
CAN FIND MORE INFORMATION
We are a
reporting company and file annual, quarterly and current reports, proxy
statements and other information with the SEC. We have filed with the SEC a
registration statement on Form S-3 under the Securities Act with respect to the
securities we are offering under this prospectus. This prospectus does not
contain all of the information set forth in the registration statement and the
exhibits to the registration statement. For further information with respect to
us and the shares of common stock we are offering under this prospectus, we
refer you to the registration statement and the exhibits and schedules filed as
a part of the registration statement. You may read and copy the registration
statement, as well as our reports, proxy statements and other information, at
the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for more information about the operation
of the Public Reference Room.
The SEC maintains an Internet
site that contains reports, proxy and information statements, and other
information regarding issuers that file electronically with the SEC, including
Procera Networks, Inc. The SEC’s Internet site can be found at
http://www.sec.gov
.
DISCLO
SURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers, and persons controlling the registrant
pursuant to the provisions described in Item 15 of the registration statement or
otherwise, we have been advised that in the opinion of the SEC 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 our payment of expenses incurred or paid by
our directors, officers, or controlling persons in the successful defense of any
action, suit, or proceeding) is asserted by our director, officer, or
controlling person in connection with the securities being registered, we will,
unless in the opinion of our 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 the
issue.
IMPORT
ANT INFORMATION INCORPORATED BY REFERENCE
The SEC
allows us to “incorporate by reference” information into this prospectus, which
means that we can disclose important information to you by referring you to
another document filed separately with the Securities and Exchange Commission.
The documents incorporated by reference into this prospectus contain important
information that you should read about us.
The
following documents are incorporated by reference into this
prospectus:
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•
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our
Form 10-K Annual Report for the fiscal year ended December 31, 2008 and
filed on March 16, 2009 (File No.
001-33691);
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•
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009, June
30, 2009 and September 30, 2009, filed with the SEC on May 18, 2009,
August 12, 2009 and November 9, 2009,
respectively;
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•
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our
Current Reports on Form 8-K filed March 19, 2009, April 13, 2009, April
30, 2009, May 8, 2009, July 17, 2009, November 4, 2009, November 17, 2009
and December 11, 2009; and
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•
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the
description of our common stock set forth in the Registration Statement on
Form 8-A filed with the SEC on September 19, 2007 (File No. 001-33691),
including any amendments or reports filed for the purpose of updating such
description.
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All
documents subsequently filed with the Securities and Exchange Commission by us
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the
date of the initial registration statement and prior to the filing of a
post-effective amendment which indicates that all securities offered herein have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part of this prospectus
from the respective dates of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof or of
the related prospectus supplement to the extent that a statement contained
herein or in any other subsequently filed document which is also incorporated or
deemed to be incorporated herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
Documents
incorporated by reference are available from us, without charge. You may obtain
documents incorporated by reference in this prospectus by requesting them in
writing or by telephone at the following address:
Procera
Networks, Inc.
100-C
Cooper Court.
Los
Gatos, California 95032
(408)
890-7100
Attn:
Corporate Secretary
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth all expenses payable by the registrant in connection
with the sale of the common stock being registered. The security holders will
not bear any portion of such expenses. All the amounts shown are estimates
except for the registration fee.
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SEC
Registration Fee
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$
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706
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Legal
fees and expenses
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$
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100,000
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Accounting
fees and expenses
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$
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50,000
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Printing,
transfer agent fees and miscellaneous expenses
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$
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50,000
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Total
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$
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200,706
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Item
15. Indemnification of Directors and Officers
The
Registrant’s bylaws and certificate of incorporation provide for the mandatory
indemnification of its directors, officers, and to the extent authorized by the
board of directors, employees and other agents, to the maximum extent permitted
by the Nevada General Corporation Law, or Nevada law, and the Registrant has
entered into agreements with certain of its officers and directors providing for
their indemnification with respect to certain matters. The Registrant carries
director and officer liability insurance with respect to certain matters,
including matters arising under the Securities Act of 1933.
Section
78.7502 of the Nevada Revised Statutes permits a corporation to indemnify a
present or former director, officer, employee, or agent of the corporation, or
of another entity for which such person is or was serving in such capacity at
the request of the corporation, who is or was a party or is threatened to be
made a party to any threatened, pending, or completed action, suit, or
proceeding, against expenses, including attorneys’ fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred in connection
therewith, arising by reason of service in such capacity if such person (i) is
not liable pursuant to Section 78.138 of the Nevada Revised Statutes, 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 interest of the corporation and, with respect to a
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. In the case of actions brought by or in the right of
corporation, however, no indemnification may be made for any claim, issue, or
matter as to which such person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable 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.
Subsection
3 of Section 78.7502 of the Nevada Revised Statutes further provides that, to
the extent 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 thereof, or in the 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
him or her in connection with the defense.
Section
78.751 of the Nevada Revised Statutes provides that unless discretionary
indemnification is ordered by a court, the determination to provide
indemnification must be made by the stockholders; by a majority vote of a quorum
of the board of directors who were not parties to the action, suit, or
proceeding; or in specified circumstances by independent legal counsel in a
written opinion. In addition, the articles of incorporation, bylaws, or an
agreement made by the corporation may provide for the payment of the expenses of
a director or officer of defending an action as incurred upon receipt of an
undertaking to repay the amount if it is ultimately determined by a court of
competent jurisdiction that the person is not entitled to
indemnification.
In
addition, the registrant has entered into indemnity agreement that require the
registrant to indemnify the directors and officers of the registrant against
expenses and certain other liabilities arising out of their conduct on behalf of
the registrant to the maximum extent and under all circumstances permitted by
law.
Item
16. Exhibits
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Description
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1.1*
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Form
of Underwriting Agreement
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2.1
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Agreement
and Plan of Merger by and between Zowcom, Inc. and the Company, dated June
24, 2003, included as Exhibit A to our Preliminary Proxy Statement on
Schedule 14A filed on August 25, 2003 and incorporated herein by
reference.
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2.2
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First
Amended and Restated Stock Exchange Agreement and Plan of Reorganization
dated August 18, 2006 by and between Procera the Company and the Sellers
of Netintact included as Exhibit 2.1 to our Form 8-K filed on August 31,
2006 and incorporated herein by reference.
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2.3
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Form
of Closing Date Warrant Agreement dated August 18, 2006 included as
Exhibit 2.2 to our Form 8-K filed on August 31, 2006 and incorporated
herein by reference.
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2.4
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Form
of Incentive Warrant Agreement dated August 18, 2006 included as Exhibit
2.3 to our Form 8-K filed on August 31, 2006 and incorporated herein by
reference.
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2.5
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Voting
Agreement dated August 18, 2006 included as Exhibit 2.5 to our Form 8-K
filed on August 31, 2006 and incorporated herein by
reference.
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4.1
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Articles
of Incorporation filed on July 16, 2001, filed as Exhibit 3.1 to our
registration statement on Form SB-2 filed on February 11, 2002 and
incorporated herein by reference.
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4.2
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Certificate
of Amendment to Articles of Incorporation filed on October 12, 2005, filed
as Exhibit 99.1 to our current report on Form 8-K filed on October 13,
2005 and incorporated herein by reference.
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4.3
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Certificate
of Amendment to Articles of Incorporation filed on April 28, 2008, filed
as Exhibit 3.3 to our quarterly report on Form 10-Q filed on May 12, 2008
and incorporated herein by reference.
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4.4
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Amended
and Restated Bylaws adopted on August 16, 2007, filed as Exhibit 3.4 to
our quarterly report on Form 10-Q filed on May 12, 2008 and incorporated
herein by reference.
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4.5
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Specimen
Certificate of Common Stock.
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4.6
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Form
of Warrant Agreement for July 2007 offering included as Exhibit 4.3 to our
Form SB-2 filed on October 5, 2007 and incorporated herein by
reference.
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4.7
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Form
of Warrant agreement for November 2006 offering included as Exhibit 2.2 to
our current report on Form 8-K filed on December 6, 2006 and incorporated
herein by reference.
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4.8
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Form
of Warrant Agreement for December 2004 offering included as Exhibit 10.3
to our current report on Form 8-K filed on January 4, 2005 and
incorporated herein by reference.
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4.9
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Form
of Warrant Agreement for December 2004 offering included as Exhibit 10.4
to our current report on Form 8-K filed on January 4, 2005 and
incorporated herein by reference.
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4.10
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Form
of Warrant Agreement for June 2003 offering included as Exhibit 4.15 to
our form SB-2 filed on October 5, 2007 and incorporated herein by
reference.
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5.1
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Opinion
of McDonald Carano Wilson LLP
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23.1
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Consent
of PMB Helin Donovan LLP, Independent Registered Public Accounting
Firm.
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23.2
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Consent
of McDonald Carano Wilson LLP is contained in Exhibit 5.1 to this
Registration Statement.
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24.1
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Power
of Attorney is contained on the signature
pages.
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*
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To
be filed by amendment or as an exhibit to a current report of the
registrant on Form 8-K and incorporated herein by
reference.
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Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement.
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however
,
that:
Paragraphs
(1)(i), (1)(ii) and (1)(iii) of this section do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in our reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Provided, however
, that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such
effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) the
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement 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.
(7) That:
(i) for purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of the
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall of 1933 be deemed to be part of the registration
statement as of the time it was declared effective; and (ii) for the purpose of
determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Gatos, State of California, on January 12,
2010.
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PROCERA
NETWORKS, INC.
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By:
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/s/
James F. Brear
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James
F. Brear
Chief
Executive Officer
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POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints James F. Brear and Charles Constanti, and each or any
one of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to (i) act on, sign, and file with the SEC any and all
amendments (including post-effective amendments) to this registration statement
together with all schedules and exhibits thereto, (ii) act on, sign and file
such certificates, instruments, agreements and other documents as may be
necessary or appropriate in connection therewith, (iii) act on and file any
supplement to any prospectus included in this registration statement or any such
amendment or any subsequent registration statement filed pursuant to Rule 462(b)
under the Securities Act and (iv) take any and all actions which may be
necessary or appropriate to be done, as fully for all intents and purposes as he
or she might or could do in person, hereby approving, ratifying and confirming
all that such agent, proxy and attorney-in-fact or any of his substitutes may
lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Chief
Executive Officer and Director
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January
12, 2010
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(Principal
Executive Officer)
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Vice
President and Chief Financial Officer
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January
12, 2010
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(Principal
Financial and Accounting Officer)
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Director
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January
12, 2010
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Director
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January
12, 2010
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Director
|
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January
12, 2010
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Director
|
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January
12, 2010
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INDEX
TO EXHIBITS
|
|
|
Description
|
|
1.1*
|
|
Form
of Underwriting Agreement
|
|
|
|
|
|
2.1
|
|
Agreement
and Plan of Merger by and between Zowcom, Inc. and the Company, dated June
24, 2003, included as Exhibit A to our Preliminary Proxy Statement on
Schedule 14A filed on August 25, 2003 and incorporated herein by
reference.
|
|
|
|
|
|
2.2
|
|
First
Amended and Restated Stock Exchange Agreement and Plan of Reorganization
dated August 18, 2006 by and between Procera the Company and the Sellers
of Netintact included as Exhibit 2.1 to our Form 8-K filed on August 31,
2006 and incorporated herein by reference.
|
|
|
|
|
|
2.3
|
|
Form
of Closing Date Warrant Agreement dated August 18, 2006 included as
Exhibit 2.2 to our Form 8-K filed on August 31, 2006 and incorporated
herein by reference.
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2.4
|
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Form
of Incentive Warrant Agreement dated August 18, 2006 included as Exhibit
2.3 to our Form 8-K filed on August 31, 2006 and incorporated herein by
reference.
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2.5
|
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Voting
Agreement dated August 18, 2006 included as Exhibit 2.5 to our Form 8-K
filed on August 31, 2006 and incorporated herein by
reference.
|
|
|
|
|
|
4.1
|
|
Articles
of Incorporation filed on July 16, 2001, filed as Exhibit 3.1 to our
registration statement on Form SB-2 filed on February 11, 2002 and
incorporated herein by reference.
|
|
|
|
|
|
4.2
|
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Certificate
of Amendment to Articles of Incorporation filed on October 12, 2005, filed
as Exhibit 99.1 to our current report on Form 8-K filed on October 13,
2005 and incorporated herein by reference.
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|
|
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4.3
|
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Certificate
of Amendment to Articles of Incorporation filed on April 28, 2008, filed
as Exhibit 3.3 to our quarterly report on Form 10-Q filed on May 12, 2008
and incorporated herein by reference.
|
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|
|
|
|
4.4
|
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Amended
and Restated Bylaws adopted on August 16, 2007, filed as Exhibit 3.4 to
our quarterly report on Form 10-Q filed on May 12, 2008 and incorporated
herein by reference.
|
|
|
|
|
|
4.5
|
|
Specimen
Certificate of Common Stock.
|
|
|
|
|
|
4.6
|
|
Form
of Warrant Agreement for July 2007 offering included as Exhibit 4.3 to our
Form SB-2 filed on October 5, 2007 and incorporated herein by
reference.
|
|
|
|
|
|
4.7
|
|
Form
of Warrant agreement for November 2006 offering included as Exhibit 2.2 to
our current report on Form 8-K filed on December 6, 2006 and incorporated
herein by reference.
|
|
|
|
|
|
4.8
|
|
Form
of Warrant Agreement for December 2004 offering included as Exhibit 10.3
to our current report on Form 8-K filed on January 4, 2005 and
incorporated herein by reference.
|
|
|
|
|
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4.9
|
|
Form
of Warrant Agreement for December 2004 offering included as Exhibit 10.4
to our current report on Form 8-K filed on January 4, 2005 and
incorporated herein by reference.
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|
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4.10
|
|
Form
of Warrant Agreement for June 2003 offering included as Exhibit 4.15 to
our form SB-2 filed on October 5, 2007 and incorporated herein by
reference.
|
|
|
|
|
|
|
|
Opinion
of McDonald Carano Wilson LLP
|
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|
|
|
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|
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Consent
of PMB Helin Donovan LLP, Independent Registered Public Accounting
Firm.
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23.2
|
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Consent
of McDonald Carano Wilson LLP is contained in Exhibit 5.1 to this
Registration Statement.
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24.1
|
|
Power
of Attorney is contained on the signature
pages.
|
|
*
|
To
be filed by amendment or as an exhibit to a current report of the
registrant on Form 8-K and incorporated herein by
reference.
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