Delaware
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94-3330068
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
|
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Incorporation
or Organization)
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Identification
Number)
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Large
accelerated filer ¨
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Accelerated
filer x
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Non-accelerated
filer ¨
(Do
not check if a smaller reporting company)
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Smaller
reporting company ¨
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Title
of Securities
to
be Registered(1)
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Amount to
be
Registered(2)
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Maximum
Offering
Price
Per
Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Common
Stock, $0.0001 par value (Inducement Stock Option Grant to Peter
Navin)
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90,000
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$15.29(3)
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$1,376,100.00
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$54.08
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Common
Stock, $0.0001 par value (Inducement Stock Option Grant to Geoffrey
Weber)
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38,500
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$14.11(4)
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$543,235.00
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$21.35
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Common
Stock, $0.0001 par value (Inducement Restricted Stock Unit Grant to
Geoffrey Weber)
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6,600
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$14.11(5)
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$93,126.00
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$3.66
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Common
Stock, $0.0001 par value (2006 Equity Incentive Plan)
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1,161,379(7)
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$7.12(6)
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$8,269,018.48
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$324.97
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Total
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1,296,479
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$8.65
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$10,281,479.48
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$404.06
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(1)
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The
securities to be registered include options and rights to acquire such
Common Stock.
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(2)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement includes an indeterminate
number of additional shares which may be offered and issued to prevent
dilution from stock splits, stock dividends or similar transactions as
provided in the above-referenced
plans.
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(3)
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Calculated
pursuant to Rule 457(h) of the Securities Act of 1933, as
amended. The price of $15.29 per share represents the exercise
price per share for the Inducement Stock Option Grant to Peter
Navin.
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(4)
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Calculated
pursuant to Rule 457(h) of the Securities Act of 1933, as
amended. The price of $14.11 per share represents the exercise
price per share for the Inducement Stock Option Grant to Geoffrey
Weber.
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(5)
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Calculated
pursuant to Rule 457(h) of the Securities Act of 1933, as
amended. The price of $14.11 per share represents the price per
share of the Inducement Restricted Stock Unit Grant to Geoffrey
Weber.
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(6)
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Calculated
solely for purposes of this offering under Rule 457(h) and Rule 457(c) of
the Securities Act of 1933, as amended. The price of $7.12 per
share represents the average of the high and low price per share of the
Registrant’s Common Stock, as reported on the Nasdaq Global Market on
January 2, 2009.
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(7)
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Represents
shares automatically reserved on January 1, 2009 for issuance upon the
exercise or settlement of awards that may be granted under the
Registrant’s 2006 Equity Incentive Plan. Shares issuable upon exercise or
settlement of awards granted under the 2006 Equity Incentive Plan were
previously registered on registration statements on Form S-8 filed with
the Securities and Exchange Commission on September 9, 2006 (Registration
No. 333-137676) and January 7, 2008 (Registration No.
333-148487).
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•
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for
any breach of the director’s duty of loyalty to the Registrant or its
stockholders,
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||
•
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for
acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law,
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•
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under
section 174 of the Delaware General Corporation Law regarding unlawful
dividends and stock purchases, or
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•
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for
any transaction from which the director derived an improper personal
benefit.
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•
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the
Registrant is required to indemnify its directors and officers to the
fullest extent permitted by the Delaware General Corporation Law, subject
to very limited exceptions,
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•
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the
Registrant may indemnify its other employees and agents as set forth in
the Delaware General Corporation Law,
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•
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the
Registrant is required to advance expenses, as incurred, to its directors
and officers in connection with a legal proceeding to the fullest extent
permitted by the Delaware General Corporation Law, subject to very limited
exceptions, and
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•
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the
rights conferred in the bylaws are not
exclusive.
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Exhibit
Document
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Number
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Form
of Underwriting Agreement
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1.01
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Restated
Certificate of Incorporation of the Registrant
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3.03
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Amended
and Restated Bylaws of the Registrant
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3.05
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Fifth
Amended and Restated Investors’ Rights Agreement dated November 11,
2005
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4.02
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Form
of Indemnity Agreement
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10.01
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By: /s/ Jeffrey T.
Housenbold
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Jeffrey
T. Housenbold
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President and
Chief Executive Officer
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Signature
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Capacity
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Date
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/s/ Jeffrey T. Housenbold
Jeffrey T.
Housenbold
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President,
Chief Executive Officer and Director
(Principal
Executive Officer)
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January
9, 2009
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/s/ Mark J. Rubash
Mark
J. Rubash
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Chief
Financial Officer
(Principal Financial and
Accounting Officer)
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January
9, 2009
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/s/ Patricia A. House
Patricia
A. House
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Director
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January
9, 2009
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/s/ Eric J. Keller
Eric
J. Keller
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Director
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January 9,
2009
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/s/
Nancy J. Schoendorf
Nancy
J. Schoendorf
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Director
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January 9,
2009
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/s/ James N. White
James
N. White
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Director
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January 9,
2009
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/s/ Stephen J. Killeen
Stephen
J. Killeen
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Director
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January 9,
2009
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4.1
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Restated
Certificate of Incorporation of the Registrant (Incorporated herein by
reference to Exhibit 3.03 of Form
S-1)
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4.2
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Amended
and Restated Bylaws of the Registrant (Incorporated herein by reference to
Exhibit 3.05 of Form S-1)
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4.3
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Form
of Registrant’s common stock certificate (Incorporated herein by reference
to Exhibit 4.01 of
Form S-1)
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4.4
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Fifth
Amended and Restated Investors’ Rights Agreement, dated November 11,
2005 (Incorporated herein by reference to Exhibit 4.02 of
Form S-1)
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4.5 | 2006 Equity Incentive Plan and forms of subscription agreements thereunder (incorporated by reference to Exhibit 10.03 of Form S-1) |
5.1 | Opinion of Fenwick & West LLP |
23.1 | Consent of Fenwick & West LLP (contained in Exhibit 5.1) |
23.2 | Consent of Independent Registered Public Accounting Firm |
24.1 | Power of Attorney (see Signature Page) |